Sanswire Corp. CONFIDENTIAL EMPLOYMENT AGREEMENT THOMAS SEIFERT June 1, 2009
CONFIDENTIAL
EMPLOYMENT AGREEMENT
XXXXXX
XXXXXXX
June
1, 2009
AGREEMENT
dated the 1st day
of June, 2009, between Sanswire Corp, a Delaware corporation, with offices at
000 X.X. 0xx Xxx,
Xxxxx 0000, Xx. Xxxxxxxxxx, Xxxxxxx 00000 at (the "Company"), and Xxxxxx
Xxxxxxx, residing at 00000 X. Xxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000
(the "Employee").
WITNESSETH:
WHEREAS,
the Company desires to employ the Employee and the Employee is willing to accept
such employment, all on the terms hereinafter set forth;
NOW,
THEREFORE, the parties agree as follows:
1. Employment. The Company hereby
employs the Employee as its Chief Financial Officer on the
terms hereinafter set forth in Appendix A, and the Employee hereby accepts such
employment. The term of this agreement is for three (3) years from date of
execution and shall automatically renew for successive one (1) year terms unless
otherwise terminated by either party upon 30 days written notice or unless this
agreement is terminated for cause.
2. Duties. The Employee will
perform duties stated as detailed in Appendix A. These job duties may be varied
from time to time by the company.
3. Exclusivity.
3.1 Activities. It is
acknowledged by the Company that the Employee may remain involved in other
business activities and will continue to do so as long as such activities do not
pose a conflict with the Employee’s duties and obligations to the Company, in
the needs of the Company at the time of the agreement.
4. Compensation.
4.1 Salary. During the first one
(1) year of employment, the Company will pay the Employee a salary as detailed
in Appendix A. Thereafter the Company will review the Employee's salary and
stock bonuses at least yearly, but, in any event, the Company may increase the
annual salary and milestone based compensation subject to review by the
employee’s supervisor. The Employee will not be entitled to overtime or other
additional compensation as a result of services performed during evenings,
weekends, holidays or at other times.
4.2 Additional Compensation.
During his employment the Company will also pay the Employee a bonus in company
stock and/or a cash amount based on personal performance as detailed in Appendix
A. Such bonus shall be determined by the Board of Directors of the Company at
their sole discretion, within the guidelines of Appendix A.
4.3 Severance. Should
the Employee be terminated prior to the end of this agreement for any reason,
except cause, the Employee shall be entitled to payment of salary, benefits and
bonus for twelve (12) months following such termination and shall be entitled to
a pro-rata bonus for the term hereunder that the Employee was
Employed.
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4.4 Change of Control, Acquisition.
In the event of a Change of Control (as defined below), then the vesting
of all shares covered by any options held the employee, plus an additional
5,000,000 shares of common stock, shall accelerate in full and such options
shall immediately become exercisable in full, and such shares shall be issued to
the Employee. Change of Control is defined as: (i) a sale of fifty percent (50%)
or more of the assets of the Company; (ii) a merger or consolidation involving
the Company in which the Company is not the surviving corporation and the
shareholders of the Company immediately prior to the completion of such
transaction hold, directly or indirectly, less than fifty percent (50%) of the
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or comparable
successor rules) of the securities of the surviving corporation (excluding any
shareholders who possessed a beneficial ownership interest in the surviving
corporation prior to the completion of such transaction); (iii) a reverse merger
involving the Company in which the Company, is the surviving corporation but the
shares of common stock of the Company (the "Common Stock") outstanding
immediately preceding the merger are converted by virtue of the merger into
other property, whether in the form of securities, cash or otherwise, and the
shareholders of the Company immediately prior to the completion of such
transaction hold, directly or indirectly, less than fifty percent (50%) of the
beneficial ownership (within the meaning of Rule l3d-3 promulgated under the
Exchange Act, or comparable successor rules) of the surviving entity or, if more
than one entity survives the transaction, the controlling entity; (iv) an
acquisition by any person, entity or group within the meaning of Section 13(d)
or 14(d) of the Exchange Act or any comparable successor provisions (excluding
any employee benefit plan, or related trust, sponsored or maintained by the
Company or an affiliate of the Company) of the beneficial ownership (within the
meaning of Rule l3d-3 promulgated under the Exchange Act, or comparable
successor rules) of securities of the Company representing at least fifty
percent (50%) of the combined voting power entitled to vote in the election of
directors; or, (v) in the event that the individuals who, as of the Effective
Date, are members of the Board of Directors (the "Incumbent Board), cease for
any reason to constitute at least fifty percent (50%) of the Parent Board. (If
the election, or nomination for election by the Company’s shareholders, of any
new member of the Board is approved by a vote of at least fifty percent (50%) of
the Incumbent Board, such new member of the Parent Board shall be considered as
a member of the Incumbent Board.)
5. Expenses.
5.1 The Company will
reimburse the Employee for all proper, normal and reasonable expenses incurred
by the Employee in performing her obligations under this Agreement upon the
Employee's furnishing the Company with satisfactory evidence of such
expenditures. The Employee will not incur any unusual or major expenditure
without the Company's prior written approval. In the event that the employee
relocates to the corporate offices, then the Company shall pay any and all
relocation expenses, up to, fifteen thousand dollars.
6. Benefits.
6.1 The Company will provide
the Employee, at the Company's expense, with medical Insurance coverage for his
immediate family and disability insurance as detailed in Appendix A, as detailed
in Appendix A, as well as disability and other insurance afforded to senior
executives.
6.2 The
Employee will be entitled to 20 days vacation during each calendar year, with
not more than 2 weeks to be taken consecutively (January 1 to December 31) in
addition to any holidays which the Company observes.
6.3 The
Employee's salary and other rights and benefits under this Agreement will not be
suspended or terminated because the Employee is absent from work due to illness,
accident or other disability; but the Company may deduct from the Employee's
salary under Section 4.1 any payment received by the Employee under any
disability insurance which the Company provides the Employee pursuant to Section
6.1. The provisions of this Section 6.3 will not limit or affect the rights of
the Company under Section 7.
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7. Death and
Disability.
7.1 If
the Employee dies prior to expiration of the term of his employment, the Company
will agree to pay any and all accrued vacation pay as well as three months
salary and six months health insurance to the Employees wife and shall grant any
and all due bonuses or stock grants to the spouse of the Employee. Any further
obligations after these payments shall cease as of the date of the Employee's
death.
8. Results of the Employee's
Services.
8.1 The Company will be
entitled to and will own all the results and proceeds of the Employee's
services, for the direct benefit of the Company, and as they relate specifically
to the Company, and not as part of the Employees outside business interests,
under this Agreement, including, without limitation, all rights throughout the
world to any copyright, patent, trademark or other right and to all ideas,
inventions, products, programs, procedures, formats and other materials of any
kind created or developed or worked on by the Employee during his/her employment
by the Company; the same shall be the sole and exclusive property of the
Company; and the Employee will not have any right, title or interest of any
nature or kind therein. Without limiting the foregoing, it will be presumed that
any copyright, patent, trademark or other right and any idea, invention,
product, program, procedure, format or material created, developed or worked on
by the Employee at any time during the term of her employment will be a result
or proceed of the Employee's services under this Agreement. The Employee will
take such action and execute such documents as the Company may request to
warrant and confirm the Company's title to and ownership of all such results and
proceeds and to transfer and assign to the Company any rights which the Employee
may have therein. The Company agrees that it will not be entitled to any works,
proceeds, or other benefits as a result of the Employees other business
activities, which the Company acknowledges at the outset of this employment
arrangement.
The Employee's right to any
compensation or other amounts under this Agreement will not constitute a lien on
any results or proceeds of the Employee's services under this
Agreement.
8.2 The Company will also
own, and promptly on receipt thereof the Employee will pay to the Company, any
monies and other proceeds to which the Employee is entitled on account of rights
pertaining to any of the Company's products which the Employee acquired before
the date of this Agreement.
8.3 The
Employee acknowledges that the violation of any of the provisions of Section 8.1
will cause irreparable loss and harm to the Company which cannot be reasonably
or adequately compensated by damages in an action at law, and, accordingly, that
the Company will be entitled to injunctive and other equitable relief to enforce
the provisions of that Section; but no action for any such relief shall be
deemed to waive the right of the Company to an action for damages.
9.0. Uniqueness of Services. The
Employee acknowledges that his services hereunder are of a special, unique,
unusual, extraordinary and intellectual character, the loss of which cannot be
reasonably or adequately compensated by damages in an action at law.
Accordingly, the Company will be entitled to injunctive and other equitable
relief to prevent or cure any breach or threatened breach of this Agreement by
the Employee, but no action for any such relief shall be deemed to waive the
right of the Company to an action for damages. The Company shall not require the
employee to relocate, and if such demand is made, the employee shall have the
option of relocation or resigning the position. Any such resignation shall not
require the forfeiture of any compensation owed by the Company. The employee
however, agrees to utilize his best efforts to relocate, but any relocation is
not guaranteed.
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10.0.
Negative Covenants.
10.1 The Employee will not,
during or after the term of this Agreement, disclose to any third person or use
or take any personal advantage of any confidential information or any trade
secret of any kind or nature obtained by his/her during the term hereof or
during her employment by the Company.
10.2 To
the full extent permitted by law, the Employee will not for a period of one year
following the termination of his/her employment with the Company:
(i) attempt to cause any person, firm
or corporation which is a customer of or has a contractual relationship with the
Company at the time of the termination of her employment to terminate such
relationship with the Company, and this provision shall apply regardless of
whether such customer has a valid contractual arrangement with the
Company;
(ii) attempt to cause any employee of
the Company to leave such employment;
(iii)
engage any person who was an employee of the Company at the time of the
termination of her employment or cause such person otherwise to become
associated with the Employee or with any other person, corporation, partnership
or other entity with which the Employee may thereafter become
associated;
(iv) engage in any activity or perform
any services competitive with any business conducted by the Company at the time
of such termination in any geographic area in which the company did business
during the course of the Employee’s employment.
The provisions of under this Section
10.2 will not apply if the Employer wrongfully terminates the Employee's
employment or if the Employee properly terminates his/her employment for
cause.
10.3 The Employee
acknowledges that the violation of any of the provisions of this Section 10 will
cause irreparable loss and harm to the Company which cannot be reasonably or
adequately compensated by damages in an action at law, and, accordingly, that
the Company will be entitled to injunctive and other equitable relief to prevent
or cure any breach or threatened breach thereof, but no action for any such
relief shall be deemed to waive the right of the Company to an action for
damages.
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11. Governing Law;
Remedies
11.1 This Agreement has been
executed in the State of Florida and shall be governed by and construed in all
respects in accordance with the law of the State of Florida
11.2 Except as otherwise
expressly provided in this Agreement, any dispute or claim arising under or with
respect to this Agreement will be resolved by arbitration in Broward County,
Florida in accordance with the National Rules for the Resolution of Employment
Disputes of the American Arbitration Association before a panel of three (3)
arbitrators, one appointed by the Employee, one appointed by the Company, and
the third appointed by said Association. The decision or award of a majority of
the arbitrators shall be final and binding upon the parties. Any arbitral award
may be entered as a judgment or order in any court of competent
jurisdiction.
11.3 Notwithstanding the
provisions for arbitration contained in this Agreement, the Company will be
entitled to injunctive and other equitable relief from the courts as provided in
Sections 8.3, 11 and 10.3 and as the courts may otherwise determine appropriate;
and the Employee agrees that it will not be a defense to any request for such
relief that the Company has an adequate remedy at law. For purposes of any such
proceeding the Company and the Employee submit to the non-exclusive jurisdiction
of the courts of the State of Florida and of the United States located in the
County of Broward State of Florida and each agrees not to raise and waives any
objection to or defense based on the venue of any such court or forum non
conveniens.
11.4 A court of competent
jurisdiction, if it determines any provision of this Agreement to be
unreasonable in scope, time or geography, is hereby authorized by the Employee
and the Company to enforce the same in such narrower scope, shorter time or
lesser geography as such court determines to be reasonable and proper under all
the circumstances.
11.5 The Company will also
have such other legal remedies as may be appropriate under the circumstance
including, inter alia,
recovery of damages occasioned by a breach. The Company's rights and remedies
are cumulative and the exercise or enforcement of any one or more of them will
not preclude the Company from exercising or enforcing any other right or
remedy.
12. Indemnity. To the extent
permitted by law, the Company will indemnify the Employee against any claim or
liability and will hold the Employee harmless from and pay any expenses
(including, without limitation, legal fees and court costs), judgments, fines,
penalties, settlements and other amounts arising out of or in connection with
any act or omission of the Employee performed or made in good faith on behalf of
the Company pursuant to this Agreement, regardless of negligence, personal
responsibility, or other. The Company will not be obligated to pay the
Employee's legal fees and related charges of counsel during any period that the
Company furnishes, at its expense, counsel to defend the Employee; but any
counsel furnished by the Company must be reasonably satisfactory to the
Employee. The foregoing provisions will survive termination of the Employee's
employment with the Company for any reason whatsoever and regardless of
fault.
13. Severability of Provisions. If
any provision of this Agreement or the application of any such provision to any
person or circumstance is held invalid, the remainder of this Agreement, and the
application of such provision other than to the extent it is held invalid, will
not be invalidated or affected thereby.
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14. Waiver. No failure by the
Company to insist upon the strict performance of any term or condition of this
Agreement or to exercise any right or remedy available to it will constitute a
waiver. No breach or default of any provision of this Agreement will be waived,
altered or modified, and the Company may not waive any of its rights, except by
a written instrument executed by the Company. No waiver of any breach or default
will affect or alter any term or condition of this Agreement, and such term or
condition will continue in full force and effect with respect to any other then
existing or subsequent breach or default thereof.
15. Miscellaneous.
15.1 This Agreement may be
amended only by an instrument in writing signed by the Company and the
Employee.
15.2 This Agreement shall be
binding upon the parties and their respective successors and assigns. The
Company may, without the Employee's consent, transfer or assign any of its
rights and obligations under this Agreement to any corporation which, directly
or indirectly, controls or is controlled by the Company or is under common
control with the Company or to any corporation succeeding to all or a
substantial portion of the Company's business and assets, provided that the
Company shall not be released from any of its obligations under this Agreement,
and provided further that any such transferee or assignee agrees in writing to
assume all the obligations of the Company hereunder. Control means the power to
elect a majority of the directors of a corporation or in any other manner to
control or determine the management of a corporation. Except as provided above,
neither the Company nor the Employee may, without the other's prior written
consent, transfer or assign any of its or her rights or obligations under this
Agreement, and any such transfer or assignment or attempt thereat without such
consent shall be null and void.
15.3 All notices under or in
connection with this Agreement shall be in writing and may be delivered
personally or sent by mail, courier, fax, or other written means of
communication to the parties at their addresses, email address and fax numbers
set forth below or to such other addresses and fax numbers as to which notice is
given:
|
(a)
|
if
to the Company:
|
Xxxxxxxx Xxxxxxxx
CEO
Suite
1500, 000 X.X. 0xx
Xxx,
Xx.
Xxxxxxxxxx Xxxxxxx 00000
xxxxxxxxx@xxxxxxxx.xxx
Fax: (000) 000-0000
|
(b)
|
if
to the Employee:
|
Xxxxxx Xxxxxxx
00000 X.
Xxxxxx Xxxx
Xxxxx
000
Xxxxxx,
Xxxxxxxx 00000
Notice will be deemed given on
receipt.
15.4 All
shares issued hereunder during a one-year period from the date of this Agreement
shall be forfeited by Employee in the event during such one-year period Employee
voluntarily terminates his employment with the Company or if the Employee is
terminated by the Company as a result of his violation of a criminal statute
which constitutes a felony. This restriction shall immediately
terminate in the event the shares are registered under the Securities Act of
1933, as provided above. During the one-year period, Employee will
have all rights as a shareholder with respect to the shares, but may not
transfer the shares to a third party except by operation of law.
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15.6 Section
headings are for purposes of convenient reference only and will not affect the
meaning or interpretation of any provision of this Agreement.
15.7 This Agreement
constitutes the entire agreement of the parties and supersedes any and all prior
agreements or understandings between them.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
| Sanswire Corp. | |||
|
|
By:
|
||
| Name: | Xxxxxxxx Xxxxxxxx | ||
| Title: | Chief Executive Officer | ||
| Date: ______________ | |||
Employee
____________________
Xxxxxx
Xxxxxxx
Date:________________
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Appendix
A
Employment. The Company hereby
employs the Employee as its Chief Financial Officer, on the terms set forth
below.
Duties. The Employee will
report to the Board of Directors of the Company and shall lead the Company and
provide the direction and vision for the Company. The CFO shall be responsible
for preparing all appropriate public filings as well as maintaining accurate
books and record of the Company to the best of their abilities and interfacing
with the Audit Committee in regards with any foreseeable accounting
irregularities.
Salary. The Company will pay the
Employee a salary of $200,000 per annum,
to be
paid in accordance with standard pay periods of other employees.
Special
Compensation: As a signing bonus, the Company will pay the
Employee 1,500,000 shares of the Company’s common stock.
Additional Compensation. During his/her employment
the Company will also pay the Employee a bonus in a grant of company stock
and/or cash. Said bonus will be the equivalent of up to 150% of
Employee’s base salary. Employee shall receive options to purchase 500,000
shares of the Common Stock of the Company to be granted and priced at the date
of execution hereof.
The
Employee shall receive additional compensation upon completing the following
milestones as follows:
|
1.
|
1,000,000
shares upon the Company commencing trading on the
OTCBB.
|
|
2.
|
1,000,000
shares upon the Company commencing trading on a national trading
market.
|
|
3.
|
1,000,000
shares upon the Company successfully filing timely SEC reports for a
period of 12 consecutive months
|
|
4.
|
1,000,000
shares upon the closing of financing of at least $2,000,000 in gross
proceeds, in the aggregate, commencing from the date of initial appoint as
CFO on June 1, 2009.
|
|
5.
|
1,000,000
shares upon the Company’s market cap reaching
$75,000,000.
|
|
6.
|
1,000,000
shares upon the Company’s market cap reaching
$125,000,000.
|
Benefits: The Company will
provide the Employee, at the Company's expense, with medical Insurance for the
Employees immediate family, as well as any other normal benefits as may be
provided to other key management personnel.
Vacation and Personal Days:
The Company will provide the Employee with twenty (20) day’s vacation time
during the year and five (5) personal days per year, which shall not be counted
against the vacation days. The Employee agrees to not take more than fourteen
(14) consecutive working days off at any one time. The Employee shall be
entitled to all other regular and customary vacation schedules as may be
afforded to other employees. All vacation days must be taken within
the calendar year that they are earned. This may be extended with
approval from the Employee’s immediate Supervisor.
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