EXHIBIT 10.6
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement"), dated effective as of March
16, 2008, by and between MOBICLEAR INC., a corporation organized and existing
under the laws of the State of Pennsylvania (the "Company"), and XXXXXXX
XXXXXXX, an individual residing at Xxxxxxx Xxxxx Xx., Xxxx, Xxxxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxx (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company wishes to employ the Executive upon the terms and
subject to the conditions set forth herein, and the Executive desires to enter
into this Agreement and accept such employment, upon such terms and conditions.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto, each intending to be legally bound hereby,
agree as follows:
1. Employment. Subject to the terms and conditions set forth herein,
the Company shall employ the Executive as Chief Financial Officer of the Company
and the Executive accepts such employment for the Employment Term (as defined in
Section 3). During the Employment Term, the Executive shall perform the duties
consistent with such office and such other duties as may from time to time be
assigned to him by the Board of Directors of the Company (the "Board").
2. Performance.
(a) During the Employment Term, the Executive shall perform and
discharge the duties that may be assigned to him by the Board from time to time
in accordance with this Agreement, and the Executive shall devote his best
talents, efforts and abilities to the performance of his duties hereunder.
(b) During the Employment Term, the Executive shall perform such
duties on a part-time basis until such time as it is agreed to make the position
full-time. The Executive shall be permitted to have other employment and other
outside business activities (other than in connection with MobiClear or any
other affiliate of the Company); provided, however, that the Executive shall
advise the Company of such activities which shall not conflict with Mobiclear.
3. Employment Term. Unless earlier terminated pursuant to Section 6,
the employment term shall begin on March 16, 2008 (the "Effective Date"), and
shall continue for a period of one (1) year from such date (the "Initial Term");
provided that such term shall be automatically extended for additional periods
of one (1) year commencing on March 16, 2009 and each March 16th thereafter
(such period the "Additional Term") unless either party shall have given notice
to the other party that such party does not desire to extend the term of this
Agreement. Any such notice must comply with Section 10 and be given at least
sixty (60) days prior to the end of the Initial Term or the Additional Terms, as
applicable (the Initial Term and the Additional Term or Terms, if applicable,
shall be known collectively as the "Employment Term"). Notwithstanding anything
in this Agreement to the contrary, the Employment Term shall end on the
Termination Date as defined in Section 6(g).
4. Compensation.
(a) Base Salary. As compensation for services hereunder and in
consideration of the Executive's other agreements hereunder, during the
Employment Term, the Company shall pay the Executive a base salary, payable in
accordance with the customary payroll practices of Company procedures, at a
monthly rate of US$17,000.00 (based upon full time employment), subject to
review by the Board no less frequently than annually for increases (such base
salary, as increased from time to time being hereinafter referred to as "Base
Salary"). The base salary shall be pro-rated for such time as devoted to the job
as agreed with the Company from time to time (i.e. if the Executive spends an
average of 4 hours each business day in a month working for the Company, the
Executive shall be entitled to a salary of US$8,500.00.)
(b) Any withholding and other applicable taxes shall be paid by the
company.
(c) Shares. As compensation for services hereunder and in
consideration of the Executive's other agreements hereunder, during the
Employment Term, the Company shall, provided that the Company is satisfied with
the performance of the Executive and not before May 1, 2008 nor later than June
15, 2008, furnish the Executive with shares corresponding to one percent (1.0 %)
of the outstanding number of shares of the Company as determined at the time of
the Effective Date of this Agreement.
(d) Option package. As compensation for services hereunder and in
consideration of the Executive's other agreements hereunder, during the
Employment Term, the Company shall, provided that the Company is satisfied with
the performance of the Executive and in any case not before May 1, 2008 nor
later than June 15, 2008, furnish the Executive with an option package
corresponding to four percent (4%) of the outstanding number of shares of the
Company as determined as of the effective date of this agreement. The per share
exercise price used as basis for the calculation of the option package should be
the bid price of the common stock of the Company as quoted on the OTCBB at the
time of the Effective Date of this Agreement.
5. Benefits. During the Employment Term, the Company shall provide the
Executive with the following benefits:
(a) Vacation, Sick Leave. The Executive shall be entitled four
weeks of paid vacation during each full calendar year of the Employment Term
(and a pro rata portion thereof for any portion of the Employment Term that is
less than a full calendar year); provided that no single vacation may exceed two
consecutive weeks in duration, unless approved by the Company. Unused vacation
may not be carried over to successive years.
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(b) Expenses. The Executive shall be reimbursed by the Company for
all reasonable expenses actually incurred or paid by him in connection with the
performance of his duties hereunder in accordance with policies established by
the Company from time to time and upon presentation of expense statements and/or
such other supporting information as the Company may reasonably require.
(c) Dues and Professional Development. The Executive shall be
reimbursed for expenses actually incurred or paid by him in connection with
maintaining his professional designations including payment of dues and
attendance at professional development courses.
6. Termination. The employment hereunder of the Executive may be
terminated prior to the expiration of the Employment Term in the manner
described in this Section 6.
(a) Termination by the Company for Good Cause. The Company shall
have the right to terminate the employment of the Executive for Good Cause (as
such term is defined in Section 6(h)(ii)) by written notice to the Executive
specifying the particulars of the circumstances forming the basis for such Good
Cause.
(b) Termination upon Death. The employment of the Executive
hereunder shall terminate immediately upon his death.
(c) The Company's Options upon Disability. If the Executive becomes
physically or mentally disabled during the Term so that he is unable to perform
the services required of him pursuant to this Agreement for a period of three
(3) successive months, or an aggregate of three (3) months in any twelve-month
period (the "Disability Period"), the Company shall have the option, in its
discretion, by giving written notice thereof, either to (A) terminate the
Executive's employment hereunder pursuant to Section 6(a); or (B) continue the
employment of the Executive hereunder upon all the terms and conditions set
forth herein. During the Disability Period, the Executive shall continue to
receive the compensation and other benefits provided herein net of any payments
received under any disability policy or program of which the Executive is a
beneficiary or recipient.
(d) Voluntary Resignation by the Executive. The Executive shall
have the right to voluntarily resign his employment hereunder for other than
Good Reason (as such term is defined in Section 6(h)(iii)) by written notice to
the Company.
(e) Termination by the Company Without Good Cause. The Company
shall have the right to terminate the Executive's employment hereunder without
Good Cause by written notice to the Executive, but the obligations placed upon
the Company in Section 7 will apply.
(f) Resignation by the Executive for Good Reason. The Executive
shall have the right to terminate his employment for Good Reason by written
notice to the Company specifying the particulars of the circumstances forming
the basis for such Good Reason.
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(g) Resignation by the Executive because of non-allocation of
shares. The Executive shall have the right to terminate his employment for
non-allocation of shares by written notice to the Company should shares
according to 4(c) above not have been allocated to the Executive within three
months from the date of this agreement.
(h) Resignation by the Executive because of non-allocation of
options. The Executive shall have the right to terminate his employment for
non-allocation of shares by written notice to the Company should shares
according to 4(d) above not have been allocated to the Executive within three
months from the date of this agreement.
(i) Termination Date. The "Termination Date" is the date as of
which the Executive's employment with the Company terminates in accordance with
this Agreement. Any notice of termination given pursuant to the provisions of
this Agreement shall specify the Termination Date.
(j) Certain Definitions. For purposes of this Agreement, the
following terms shall have the following meanings:
(i) "person" means any individual, corporation, partnership,
association, joint-stock company, trust, unincorporated organization, joint
venture, court or government (or political subdivision or agency thereof).
(ii) "Good Cause" shall mean the occurrence of any of the
following: (A) any act or omission which constitutes a material breach of this
Agreement or the willful failure or the willful refusal of the Executive to
substantially perform his duties, provided, however, that the Board has
delivered to the Executive a written demand to cure the breach or for
substantial performance, which demand specifically identifies the manner in
which the Executive has breached the Agreement or failed to substantially
perform his duties, and the Executive has been given ten (10) days after such
notice (or such longer period as may reasonably be necessary) in which to cure
the failure or to substantially perform his duties, (B) the Executive's
conviction of a crime which constitutes a felony under applicable law, or a plea
of guilty or nolo contendere with respect thereto; (C) the commission by the
Executive of any dishonest or wrongful act or the gross negligence of the
Executive involving fraud, misrepresentation or moral turpitude causing material
damage or potential damage to the Company or any client of the Company, or any
act or omission by the Executive that is materially injurious to the business or
reputation of the Company; (D) any violation of the provisions of Section 8
hereof that causes material harm to the Company; or (E) the reasonable
determination by a licensed medical professional mutually agreed upon by the
Company and the Executive that the Executive is dependent upon a controlled
substance which either has: (1) not been prescribed by a licensed medical
professional; or (2) been prescribed by a licensed medical professional but the
dosages taken by the Executive exceed that prescribed by such licensed medical
professional.
(iii) "Good Reason" means the occurrence of any of the
following events:
(A) the assignment to the Executive of any duties
inconsistent in any material respect with the Executive's then position
(including status, offices, titles and reporting relationships), authority,
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duties or responsibilities, or any other action or actions by the Company which
when taken as a whole results in a significant diminution in the Executive's
position, authority, duties or responsibilities, excluding for this purpose any
isolated, immaterial and inadvertent action not taken in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by the
Executive;
(B) a material breach by the Company of one or more
provisions of this Agreement, provided that such Good Reason shall not exist
unless the Executive shall first have provided the Company with written notice
specifying in reasonable detail the factors constituting such material breach
and such material breach shall not have been cured by the Company within thirty
(30) days after such notice or such longer period as may reasonably be necessary
to accomplish the cure;
(C) a material reduction in the Executive's Base Salary or a
reduction in any other benefit or payment described in this Agreement provided
that those changes (either individually or in the aggregate) will result in a
material adverse change with respect to the benefits to which the Executive was
entitled as of the Effective Date;
(D) a failure by the Company to require any successor entity
to the Company specifically to assume all of the Company's obligations to the
Executive under this Agreement; and
(F) any purported termination by the Company of the
Executive's employment otherwise than as expressly permitted by this Agreement.
7. Obligations of Company on Termination. Notwithstanding anything in
this Agreement to the contrary, the Company's obligations on termination of the
Executive's employment shall be as described in this Section 7. In the event
that prior to the expiration of the Employment Term, the Company terminates the
Executive's employment, pursuant to Section 6(a), (b), (c) or (e), or the
Executive resigns, pursuant to Section 6 (d) or 6(f), within thirty (30) days
following the Termination Date, the Company shall pay the Executive a single
lump sum cash payment (the "Severance Payment") equal to the sum of the
following:
(A) the equivalent of three (3) month's Base Salary; and
(B) any Base Salary, cash bonuses, vacation and
un-reimbursed expenses accrued but unpaid as of the Termination Date.
8. Covenants of the Executive
(a) During the Employment Term and for a period of two (2) years
thereafter the Executive shall not, directly or indirectly, employ, solicit for
employment or otherwise contract for the services of any employee of the Company
or any of its affiliates at the time of this Agreement or who shall subsequently
become an employee of the Company or any such affiliate; and
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(b) During the Employment Term and for a period of two (2) years
thereafter the Executive will not solicit, in competition with the Company or
its affiliates, any person who is, or was at any time within two years prior to
the Termination Date, a customer of the business conducted by the Company or any
of its affiliates. For purposes of this Agreement, the reasonable decision of
the Board as to what constitutes a competing business shall be final and binding
upon the Executive; provided that the Executive's ownership of securities of two
percent (2%) or less of any publicly traded class of securities of a public
company shall not be considered to be competition with the Company or any of its
affiliates.
(c) During the Employment Term and following the termination of
this Agreement, the Executive will not: (i) divulge, transmit or otherwise
disclose (except as legally compelled by court order, and then only to the
extent required, after prompt notice to the Company of any such order), directly
or indirectly, other than in the regular and proper course of business of the
Company, any confidential knowledge or information with respect to the
operations, finances, organization or employees of the Company or with respect
to confidential or secret processes, services, techniques, customers or plans
with respect to the Company; and (ii) use, directly or indirectly, any
confidential information for the benefit of anyone other than the Company;
provided, however, that the Executive has no obligation, express or implied, to
refrain from using or disclosing to others any such knowledge or information
which is or hereafter shall become available to the public other than through
disclosure by the Executive. All new processes, techniques, know-how,
inventions, plans, products, patents and devices developed, made or invented by
the Executive, alone or with others, while an employee of the Company which are
related to the business of the Company shall be and become the sole property of
the Company, unless released in writing by the Company, and the Executive hereby
assigns any and all rights therein or thereto to the Company.
(d) All files, records, correspondence, memoranda, notes or other
documents (including, without limitation, those in computer-readable form), real
property or intellectual property relating or belonging to the Company or its
affiliates, whether prepared by the Executive or otherwise coming into his
possession in the course of the performance of his services under this
Agreement, shall be the exclusive property of Company and shall be delivered to
Company and not retained by the Executive (including, without limitations, any
copies thereof) upon termination of this Agreement for any reason whatsoever.
(e) The Executive acknowledges that a breach of his covenants
contained in this Section 8 may cause irreparable damage to the Company and its
affiliates, the exact amount of which will be difficult to ascertain, and that
the remedies at law for any such breach will be inadequate. Accordingly, the
Executive agrees that if he breaches any of the covenants contained in this
Section 8, in addition to any other remedy which may be available at law or in
equity, the Company shall be entitled to specific performance and injunctive
relief.
(f) The Company and the Executive further acknowledge that the
time, scope, geographic area and other provisions of this Section 8 have been
specifically negotiated by sophisticated commercial parties and agree that all
such provisions are reasonable under the circumstances of the activities
contemplated by this Agreement. In the event that the agreements in this Section
8 shall be determined by any court of competent jurisdiction to be unenforceable
by reason of their extending for too great a period of time or over too great a
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geographical area or by reason of their being too extensive in any other
respect, they shall be interpreted to extend only over the maximum period of
time for which they may be enforceable and/or over the maximum geographical area
as to which they may be enforceable and/or to the maximum extent in all other
respects as to which they may be enforceable, all as determined by such court in
such action.
(g) The Executive agrees to cooperate with the Company, during the
Employment Term and thereafter (including following the Executive's termination
of employment for any reason), by making himself reasonably available to testify
on behalf of the Company or any of its affiliates in any action, suit, or
proceeding, whether civil, criminal, administrative, or investigative, and to
assist the Company, or any affiliate, in any such action, suit, or proceeding,
by providing information and meeting and consulting with the Board or its
representatives or counsel, or representatives or counsel to the Company, or any
affiliate as reasonably requested; provided, however that the same does not
materially interfere with his then current professional activities and is not
contrary to the best interests of the Executive. The Company agrees to reimburse
the Executive, on an after-tax basis, for all expenses actually incurred in
connection with his provision of testimony or assistance.
(h) The parties agrees that, during the Employment Term and
thereafter (including following the Executive's termination of employment for
any reason) that they will not make statements or representations, or otherwise
communicate, directly or indirectly, in writing, orally, or otherwise, or take
any action which may, directly or indirectly, disparage the other party or any
of its affiliates or their respective officers, directors, employees, advisors,
businesses or reputations. Notwithstanding the foregoing, nothing in this
Agreement shall preclude the either party from making truthful statements or
disclosures that are required by applicable law, regulation or legal process.
9. Arbitration. The parties agree that any dispute, claim, or
controversy based on common law, equity, or any federal, state, or local
statute, ordinance, or regulation (other than workers' compensation claims)
arising out of or relating in any way to the Executive's employment, the terms,
benefits, and conditions of employment, or concerning this Agreement or its
termination and any resulting termination of employment, including whether such
a dispute is arbitrable, shall be settled by arbitration. This agreement to
arbitrate includes but is not limited to all claims for any form of illegal
discrimination, improper or unfair treatment or dismissal, and all tort claims.
The Executive will still have a right to file a discrimination charge with a
federal or state agency, but the final resolution of any discrimination claim
will be submitted to arbitration instead of a court or jury. The arbitration
proceeding will be conducted under the employment dispute resolution arbitration
rules of the American Arbitration Association in effect at the time a demand for
arbitration under the rules is made. The decision of the arbitrator(s),
including determination of the amount of any damages suffered, will be
exclusive, final, and binding on all parties, their heirs, executors,
administrators, successors and assigns. Each party will bear its own expenses in
the arbitration for arbitrators' fees and attorneys' fees, for its witnesses,
and for other expenses of presenting its case. Other arbitration costs,
including administrative fees and fees for records or transcripts, will be borne
equally by the parties.
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10. Notices. Any notices required or permitted hereunder shall be in
writing and shall be deemed to have been given when personally delivered or when
mailed, certified or registered mail, postage prepaid, to the following
addresses:
If to the Executive:
Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxx St., West
Lingayen, Pangasinan, Philippines
If to the Company:
MOBICLEAR INC.
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
11. General.
(a) Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Pennsylvania applicable to contracts executed and to be performed entirely
within the State of Pennsylvania.
(b) Construction and Severability. If any provision of this
Agreement shall be held invalid, illegal or unenforceable in any jurisdiction,
the validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired, and the parties undertake
to implement all efforts which are necessary, desirable and sufficient to amend,
supplement or substitute all and any such invalid, illegal or unenforceable
provisions with enforceable and valid provisions which would produce as nearly
as may be possible the result previously intended by the parties without
renegotiation of any material terms and conditions stipulated herein.
(c) Performance; Assignability. The Executive represents and
warrants to the Company that the Executive has no contracts or agreements of any
nature that the Executive has entered into with any other person, firm or
corporation that contain any restraints on the Executive's ability to perform
his obligations under this Agreement. The Executive may not assign his interest
in or delegate his duties under this Agreement. This Agreement is for the
employment of the Executive, personally, and the services to be rendered by him
under this Agreement must be rendered by him and no other person. This Agreement
shall be binding upon and inure to the benefit of the Company and its successors
and assigns. Notwithstanding anything else in this Agreement to the contrary,
the Company may assign this Agreement to and all rights hereunder shall inure to
the benefit of any person, firm or corporation resulting from the reorganization
of the Company or succeeding to the business or assets of the Company by
purchase, merger or consolidation. The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of the Company to assume
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expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no succession had
taken place. The Company's failure to obtain such an assumption and agreement
prior to the effective date of a succession will be a breach of this Agreement
and will entitle the Executive to compensation from the Company in the same
amount and on the same terms as if the Executive were to terminate his
employment for Good Reason, except that, for purposes of implementing the
foregoing, the date on which any such succession becomes effective will be
deemed the Termination Date.
(d) Compliance with Rules and Policies. The Executive shall
perform all services in accordance with the policies, procedures and rules
established by the Company, including, but not limited to, the By-Laws of the
Company. In addition, the Executive shall comply with all laws, rules and
regulations that are generally applicable to the Company, its affiliates and
their employees, directors and officers.
(e) Withholding. The Company shall withhold from all amounts due
hereunder any withholding taxes payable to federal, state, local or foreign
taxing authorities.
(f) Entire Agreement, Modification. This Agreement constitutes the
entire agreement of the parties hereto with respect to the subject matter
hereof, supersedes all prior agreements and undertakings, both written and oral,
and may not be modified or amended in any way except in writing by the parties
hereto.
(g) Duration. Notwithstanding the Employment Term hereunder, this
Agreement shall continue for so long as any obligations remain under this
Agreement.
(h) Survival. The covenants set forth in Section 8 of this
Agreement shall survive and shall continue to be binding upon the Executive
notwithstanding the termination of this Agreement for any reason whatsoever. It
is expressly agreed that the remedy at law for the breach or threatened breach
of any such covenant is inadequate and that the Company, in addition to any
other remedies that may be available to it, in law or in equity, shall be
entitled to injunctive relief to prevent the breach or any threatened breach
thereof without bond or other security or a showing that monetary damages will
not provide an adequate remedy.
(i) Waiver. No waiver by either party hereto of any of the
requirements imposed by this Agreement on, or any breach of any condition or
provision of this Agreement to be performed by, the other party shall be deemed
a waiver of a similar or dissimilar requirement, provision or condition of this
Agreement at the same or any prior or subsequent time. Any such waiver shall be
express and in writing, and there shall be no waiver by conduct.
(j) Counterparts. This Agreement may be executed in two or more
counterparts, all of which taken together shall constitute one instrument.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have hereunto executed this Agreement as of the day and year first written
above.
Date: MOBICLEAR INC.
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By: /s/
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Name: Anders Ericsson
Title: President and
Chief Executive Officer
Date: XXXXXXX XXXXXXX
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/s/
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