VOCALSCAPE NETWORKS, INC. EMPLOYMENT AGREEMENT
EXHIBIT
10.1
This
Employment Agreement (the “Agreement”) is dated as of September 22, 2006 by and
between Xxxxxx Xxxx (“Executive”) and Vocalscape Networks, Inc., a Nevada
corporation (the “Company”).
1.
Duties.
1.1
Position.
Executive is employed as Head of Business Development, reporting to the board
of
directors of the Company (the “Board”). The duties and responsibilities of
Executive shall be those normally associated with Executive’s position as Head
of Business Development of the Company. The Executive shall perform such duties
as from time to time may be prescribed for him by the Board, in all cases to
be
consistent with Executive’s corporate offices and positions.
1.2
Obligations
to the Company.
Executive agrees to the best of his ability and experience that he will at
all
times loyally and conscientiously perform all of the duties and obligations
required of and from Executive pursuant to the express and implicit terms
hereof, and to the reasonable satisfaction of the Company. During the term
of
Executive’s employment relationship with the Company, Executive further agrees
that he will devote all of his business time and attention to the business
of
the Company, the Company will be entitled to all of the benefits and profits
arising from or incident to all such work services and advice, and Executive
will not render commercial or professional services of any nature to any person
or organization, whether or not for compensation, without the prior written
consent of the Company’s Board, and will not directly or indirectly engage or
participate in any business that is competitive in any manner with the business
of the Company. Executive will comply with and be bound by the Company’s
operating policies, procedures and practices from time to time in effect during
the term of Executive’s employment.
2.
Term
of Employment.
Subject
to the terms and conditions set forth in this Agreement, the Company agrees
to
employ Executive and Executive agrees to be employed by the Company for an
initial term of five years, starting September 22, 2006; provided,
however,
that
this initial five-year term automatically shall extend for one additional year
on such fifth anniversary date and on each subsequent anniversary of such date.
3.
Compensation.
For the
duties and services to be performed by Executive hereunder, the Company shall
pay Executive, and Executive agrees to accept, the salary, stock options,
bonuses and other benefits described below in this Section 3.
3.1
Salary.
(i)
During calendar year 2006, Executive shall receive a monthly base salary of
$30,000, which is equivalent to Three Hundred Sixty Thousand United States
Dollars ($360,000) on an annualized basis. Executive’s monthly base salary will
be payable pursuant to the Company’s normal payroll practices for payment of
salary to executive employees. Executive’s base salary will be reviewed as part
of the Company’s normal salary review process, provided,
however,
Executive’s annualized salary shall increase at a rate not less than five
percent (5%) from the previous year’s annualized salary, beginning on the first
anniversary date of the date of this Agreement and on each subsequent
anniversary.
(ii)
In
the event that the Company does not pay Executive’s monthly base salary (“Past
Due Salary”) within thirty (30) day of when such monthly base salary was due
Executive, then Executive shall have the option to convert such Past Due Salary
into the number of shares of common stock of the Company obtained by dividing
(a) the outstanding principal balance of the Past Due Salary by (b) the average
closing bid price per share of common stock of the Company, as reported by
the
Over-the-Counter Bulletin Board or such other interdealer quotation service
or
exchange on which such shares are primarily traded (as adjusted for any stock
split, combination, consolidation or stock distributions or stock dividends
or
recapitalizations or the like) for the ten (10) business days prior to the
date
when the Past Due Salary was due Executive.
3.2
Stock
Options.
(i)
Stock
Incentive Program.
In
addition to new hire option grants and any other outstanding options that
Executive may currently hold, Executive is eligible to participate in the Stock
Incentive Program (the “Program”) whereby each year Executive may receive an
option for up to eight hundred thousand (800,000) shares of Company Common
Stock
(the “Option”). The number of shares awarded, if any, will be based solely on
the Company’s achievement of business and other goals solely determined by the
Board prior to the start of each fiscal year. Options earned under this Program,
if any, will be granted no later than February following the close of the
applicable fiscal year. Any Option granted pursuant to this Program will have
a
purchase price equal to the fair market value on the grant date, and shall
be
subject to the terms of an incentive stock option agreement or a notice of
stock
option grant, as is appropriate. Vesting shall be contingent upon Executive’s
continued employment with the Company.
(ii)
Change
of Control Benefit.
(A)
Acceleration.
In the
event of a Change of Control (as defined in Section 5.1 of this Agreement),
(i)
if any of Executive’s outstanding options (the “Awards”), if any, are assumed or
an equivalent option is substituted by such successor corporation or a parent
or
subsidiary of such successor corporation (the “Successor Corporation”), one half
of the then unvested portion of the Awards shall be deemed to have vested
immediately prior to the transaction, (ii) if the Awards are not assumed or
an
equivalent option is not substituted by the Successor Corporation, all of the
then unvested portion of the Awards shall be deemed to have vested immediately
prior to such transaction and (iii) if Executive is terminated without Cause
(as
defined below in Section 5.2) or if Executive Resigns for Good Reason (as
defined in Section 5.3) within twelve (12) months following the consummation
of
the transaction where the Successor Corporation assumed the Awards or
substituted an equivalent option, the entire unvested portion of the Awards
held
by Executive shall be deemed to have vested and become fully exercisable
immediately prior to any such termination or resignation. If the vesting of
the
Awards is accelerated pursuant to this Section 3.2(ii)(A), the Company shall
notify Executive that the vesting of the Awards has been accelerated and
Executive shall have the right to exercise the Awards prior to the transaction,
termination or resignation as applicable.
(B)
Limitation
on Payments.
In the
event that the vesting acceleration provided for in Section 3.2(ii)(A) above
(i)
constitutes “parachute payments” within the meaning of Section 280G of the
Internal Revenue Code (the “Code”), and (ii) but for this Section 3.2(ii)(B)
would be subject to the excise tax imposed by Section 4999 of the Code (or
any
corresponding provisions of state income tax law), then such vesting
acceleration shall be either (aa) delivered in full, or (bb) delivered as to
such lesser extent which would result in no portion of such severance benefits
being subject to excise tax under Code Section 4999, whichever amount, taking
into account the applicable federal, state and local income taxes and the excise
tax imposed by Code Section 4999, results in the receipt by Executive on an
after-tax basis of the greater amount of acceleration benefits, notwithstanding
that all or some portion of such benefits may be taxable under Code Section
4999. Any determination required under this Section 3(b)(ii)(B) shall be made
in
writing by the Company’s independent accountants, whose determination shall be
conclusive and binding for all purposes on the Company and any affected
Executive. In the event that (aa) above applies, then the Executive shall be
responsible for any excise taxes imposed with respect to such benefits. In
the
event that (bb) above applies, then each benefit provided hereunder shall be
proportionately reduced to the extent necessary to avoid imposition of such
excise taxes.
3.3
Discretionary
Bonus.
Executive is eligible for an annual discretionary cash bonus equal to up to
20%
of Executive’s then current base salary. This discretionary bonus will be based
upon (i) the Company’s achievement of business and other goals solely determined
by the Board in November of the previous fiscal year and (ii) the Executive’s
achievement of personal performance objectives established and approved by
the
Company no later than February each fiscal year. Payment of any earned bonus
shall be made no later than February following the close of the applicable
fiscal year. In addition, Executive may be entitled to other incentive bonuses
as solely determined by the Board or the Company’s Compensation Committee from
time to time.
3.4
Additional
Benefits.
Executive is eligible to and shall participate in the Company’s employee benefit
plans of general application, so long as any such plans exist, in accordance
with the rules established for individual participation in any such plan and
under applicable law.
3.5
Indemnification.
Executive has previously entered into the Company’s standard form of
Indemnification Agreement, substantially in the form attached hereto as
Exhibit
A,
providing indemnification to Executive to the maximum extent permitted by law,
and in accordance therewith, the Company has agreed to advance any expenses
for
which indemnification is available to the extent allowed by applicable law.
3.6
Vacation.
Executive is eligible to accrue up to 10 days of paid vacation per year, which
vacation may be used in the year in which accrued or in a subsequent year,
subject to the Company’s policies with respect to maximum accrual of unused
vacation.
3.7
Non-dilution.
(i)
The
Company and Executive hereby acknowledge that Executive currently holds twenty
thousand (20,000) shares (the “Executive Series A Preferred Shares”) of Series A
Convertible Preferred Stock of the Company, equal to the voting power of
100,000,000 shares of common stock of the Company.
(ii)
For
so long as Executive is an employee of the Company, Executive agrees that
Executive shall not resell any shares of the Executive Series A Preferred
Shares, and that the Company may put stop transfer orders on its books and
refuse any transfer of the Executive Series A Preferred Shares.
(iii)
For
so long as Executive is an employee of the Company, the Company agrees that
Executive shall hold equity securities in the Company which have an aggregate
voting power equal to not less than a majority of the voting control of all
equity securities of the Company. Prior to any issuance of equity securities
of
the Company the effect of which would cause Executive to not hold a majority
of
the voting control of all equity securities of the Company, the Company shall
issue to Executive that number of shares of Series A Convertible Preferred
Stock, common stock or other securities of the Company, fully-paid and
non-assessable, to Executive prior to the issuance of any equity securities
the
effect of which would cause Executive to not hold a majority of the voting
control of all equity securities of the Company. A certificate(s) representing
any securities issued to Executive pursuant to this paragraph shall be delivered
by overnight courier to, and received by, Executive not later than the fifth
business day following any issuance of securities to Executive pursuant to
this
Paragraph 3.7; provided,
however,
that
Executive shall have the absolute and unconditional right to vote any securities
issued to Executive or obligated by the Company to be issued to Executive
pursuant to this Paragraph 3.7 at any meeting of the stockholders or as part
of
any consent to action of the stockholders irrespective of whether of the Company
has delivered any certificate representing securities it is obligated to deliver
pursuant to this Paragraph 3.7. Any certificate representing securities
delivered pursuant to this Paragraph 3.7 shall be made at such address as such
Executive designates below Executive’s signature block to this Agreement, or as
may hereafter be made in writing to the Company in accordance with this
Agreement.
(iv)
The
transferability of any securities issued by the Company to Executive pursuant
to
this Section 3.7 shall be limited by sub-clause (ii) of this Section
3.7.
3.8
Stock
Grant.
The
Company shall issue Executive fifteen thousand (15,000) shares of its Series
Convertible Preferred Stock upon execution of this Agreement by
Executive.
4.
Severance
Benefits.
Executive shall be entitled to receive severance benefits upon termination
of
employment only as set forth in this Section 4. Executive’s entitlement to such
severance benefits shall be conditioned upon Executive’s execution and delivery
to the Company of (i) a general release of all claims, (ii) a resignation from
all of Executive’s positions with the Company and (iii) an agreement not to
directly or indirectly be employed or involved with any business developing
or
exploiting any products or services that are competitive with products or
services (a) being commercially developed or exploited by the Company during
Executive’s employment and (b) on which Executive worked or about which
Executive learned proprietary information or trade secrets of the Company during
Executive’s employment with the Company. Any payment of severance benefits under
the terms of this Agreement will be subject to all applicable tax withholding.
4.1
Voluntary
Termination or Termination for Cause.
If
Executive voluntarily elects to terminate his employment with the Company other
than by Executive’s Resignation for Good Reason, as defined in Section 5.3
below, or if the Company or a successor entity terminates Executive’s employment
for Cause, as defined in Section 5.2 below, or the Executive dies or becomes
incapacitated or otherwise disabled in such a manner that, in the sole
determination of the Board, the Executive cannot perform reasonably the duties
specified in Section 1 above, then Executive shall not be entitled to receive
payment of any severance benefits. Executive will receive payment for all salary
and unpaid vacation accrued as of the date of Executive’s termination of
employment and Executive’s benefits will be continued solely to the extent of
the Company’s then existing benefit plans and policies in accordance with such
plans and policies in effect on the date of termination and in accordance with
applicable law.
4.2
Involuntary
Termination Apart From a Change of Control.
If
Executive’s employment is terminated by the Company or a successor entity
without Cause or by Executive’s Resignation for Good Reason prior to or more
than twelve (12) months after a Change of Control (as defined below), Executive
will receive payment for all salary and unpaid vacation accrued as of the date
of Executive’s termination of employment, and, in addition, Executive will be
entitled to receive the following severance benefits:
(i)
continued payment of his base salary for a period equal to the term of
employment of Executive remaining under this Agreement immediately prior to
the
date of termination, in accordance with the Company’s normal payroll practices;
(ii)
reimbursement of his premium cost for continuation of health insurance coverage
with terms and conditions substantially similar to Company’s health insurance
plan, if any, in effect at the time of termination for the lesser of the first
twelve (12) months of continuation coverage or that number of months until
Executive becomes eligible for reasonably comparable benefits under any future
employer’s health insurance plan, provided Executive makes a timely election for
such continuation coverage and presents reasonably requested documentation
of
payment of such premiums;
(iii)
payment of 100% of Executive’s current year discretionary cash bonus regardless
of the Company’s or the Executive’s achievement of the goals referred to in
Section 3.3 of this Agreement;
(iv)
accelerated vesting as to 50% of Executive’s then unvested option shares; and
(v)
reimbursement for up to $20,000 of expenses incurred in obtaining new
employment, provided Executive submits evidence that is satisfactory to the
Company that the amount involved was expended and related to obtaining new
employment.
4.3
Involuntary
Termination Following a Change of Control.
If
Executive’s employment is terminated by the Company or a successor entity
without Cause or by Executive’s Resignation for Good Reason in either case
within twelve (12) months following a Change of Control, Executive will receive
payment for all salary and unpaid vacation accrued as of the date of Executive’s
termination of employment, and, in addition, Executive will be entitled to
receive the following severance benefits:
(i)
continued payment of his base salary for a period equal to the term of
employment of Executive remaining under this Agreement immediately prior to
the
date of termination, in accordance with the Company’s normal payroll practices;
(ii)
reimbursement of his premium cost for continuation of health insurance coverage
with terms and conditions substantially similar to Company’s health insurance
plan, if any, in effect at the time of termination for the lesser of the first
twelve (12) months of continuation coverage or that number of months until
Executive becomes eligible for reasonably comparable benefits under any future
employer’s health insurance plan, provided Executive makes a timely election for
such continuation coverage and presents reasonably requested documentation
of
payment of such premiums;
(iii)
payment of 150% of Executive’s current year discretionary cash bonus regardless
of the Company’s or the Executive’s achievement of the goals referred to in
Section 3.3 of this Agreement;
(iv)
accelerated vesting of 100% of all the unvested option shares pursuant to the
terms of Section 3.2(ii) of this Agreement; and
(v)
reimbursement for up to $20,000 of expenses incurred in obtaining new
employment, provided Executive submits evidence that is satisfactory to the
Company that the amount involved was expended and related to obtaining new
employment.
5.
Definitions.
For
purposes of this Agreement, the following definitions shall apply:
5.1
“Change
of Control”
means
a
sale of all or substantially all of the Company’s assets, or any merger or
consolidation of the Company with or into another corporation other than a
merger or consolidation in which the holders of more than 50% of the shares
of
capital stock of the Company outstanding immediately prior to such transaction
continue to hold (either by the voting securities remaining outstanding or
by
their being converted into voting securities of the surviving entity) more
than
50% of the total voting power represented by the voting securities of the
Company, or such surviving entity, outstanding immediately after such
transaction.
5.2
“Cause”
means
the determination by the Board of any of the following: (i) Executive’s failure
to perform Executive’s duties and responsibilities to the Company in a manner
consistent with those normally associated Executive’s position as a head of
business development of the Company; or (ii) Executive’s unauthorized use or
disclosure of any proprietary information or trade secrets of the Company or
any
other party to whom the Executive owes an obligation of nondisclosure as a
result of his relationship with the Company.
5.3
“Resignation
for Good Reason”
means,
subject to the right of either party to arbitrate a dispute with respect thereto
in accordance with Section 12 below, Executive’s resignation as a result of, and
within 30 days following: (i) a change in Executive’s position such that he is
not a corporate officer of the Company (or a successor company, in the event
of
a Change of Control); (ii) a significant and substantial reduction in
Executive’s job, duties, or responsibilities in a manner that is substantially
and materially inconsistent with the position, duties, or responsibilities
held
by Executive immediately before such reduction; (iii) any reduction in
Executive’s base salary other than in connection with and consistent with a
general reduction of all officer base salaries; or (iv) a relocation of the
Company’s executive offices to a location more than 50 miles away from their
current location provided such change increases Executive’s commute by 25 miles
or 45 minutes.
6.
Confidentiality
Agreement.
Executive has signed a Proprietary Information and Inventions Agreement (the
“Proprietary Agreement”) that is incorporated by reference and made a part of
this Agreement and the form of which is attached hereto as Exhibit
B.
Executive hereby represents and warrants to the Company that Executive has
complied with all obligations under the Proprietary Agreement and agrees to
continue to abide by the terms of the Proprietary Agreement and further agrees
that the provisions of the Proprietary Agreement shall survive any termination
of this Agreement or of Executive’s employment relationship with the Company in
accordance with the terms of the Proprietary Agreement.
7.
Confidentiality
of Terms.
Executive agrees to follow the Company’s strict policy that employees must not
disclose, either directly or indirectly, any information, including any of
the
terms of this Agreement, regarding salary or stock purchase allocations to
any
person, including other employees of the Company (other than such employees
who
have a need to know such information); provided,
however,
that
Executive may discuss such terms with members of his immediate family and any
legal, tax or accounting specialists who provide Executive with individual
legal, tax or accounting advice.
8.
Covenants.
In
addition to the obligations to which the Executive agreed by executing the
Proprietary Agreement, Executive understands and agrees that during the term
of
Executive’s employment with the Company, and for the greater of (i) the duration
of any payments to Executive of severance benefits pursuant to Section 4 of
this
Agreement or (ii) two years after the termination of Executive’s employment with
the Company, Executive will not do any of the following:
8.1
Compete.
Without
the Company’s prior written consent, Executive will not directly or indirectly
be employed or involved with any business developing or exploiting any products
or services that are competitive with products or services (i) being
commercially developed or exploited by the Company during Executive’s employment
and (ii) on which Executive worked or about which Executive learned proprietary
information or trade secrets of the Company during Executive’s employment with
the Company.
8.2
Solicit
Business.
Solicit
or influence or attempt to influence any client, customer or other person either
directly or indirectly, to direct his, her or its purchase of the Company’s
products and/or services to any person, firm, corporation, institution or other
entity in competition with the business of the Company.
8.3
Solicit
Personnel.
Solicit
or influence or attempt to influence any of the Company’s employees, consultants
or other service providers to terminate or otherwise cease his, her or its
employment, consulting or service relationships with the Company or to become
an
employee, consultant or service provider of any competitor of the Company.
9.
Breach
of the Agreement.
Executive acknowledges that upon his breach of this Agreement or the Proprietary
Agreement, the Company would sustain irreparable harm from such breach, and,
therefore, Executive agrees that in addition to any other remedies which the
Company may have under this Agreement or otherwise, the Company shall be
entitled to obtain equitable relief, including specific performance and
injunctions, restraining Executive from committing or continuing any such
violation of the Agreement or the Proprietary Agreement. Executive acknowledges
and agrees that upon Executive’s material or intentional breach of any of the
provisions of the Agreement (including Section 8) or the Proprietary Agreement,
in addition to any other remedies the Company may have under this Agreement
or
otherwise, the Company’s obligations to provide benefits to Executive as
described in this Agreement, including without limitation those benefits
provided in Section 4, shall immediately terminate.
10.
Entire
Agreement.
This
Agreement, including the Proprietary Agreement that the Executive has signed,
sets forth the entire agreement and understanding of the parties relating to
the
subject matter herein, supersedes any prior agreement, and merges all prior
discussions between them.
11.
Conflicts.
Executive represents and warrants that his performance of all the terms of
this
Agreement will not breach any other agreement or understanding to which
Executive is a party. Executive has not, and will not during the term of this
Agreement, enter into any oral or written agreement in conflict with any of
the
provisions of this Agreement.
12.
Dispute
Resolution.
In the
event of any dispute, controversy or claim arising under or in connection with
this Agreement, or the breach hereof (including a dispute as to whether Cause
or
Resignation for Good Reason exists), the parties hereto shall first submit
their
dispute to formal mediation. The Company shall select a mediator reasonably
acceptable to both parties. In the event that the parties cannot reach
resolution through formal mediation, the dispute shall be settled by arbitration
in Seattle, Washington, in accordance with the Rules of the American Arbitration
Association then in effect. Each party shall pay his, her or its own costs
(including attorneys’ fees) in connection with such mediation or arbitration. To
the extent such mediation or arbitration requires the submission of any
information that either party claims is confidential information, the parties
agree that such mediation or arbitration shall be confidential proceeding.
Judgment upon the award rendered by the mediator or arbitrator may be entered
in
any court of competent jurisdiction. If any proceeding is necessary to enforce
the mediation or arbitration award, the prevailing party shall be entitled
to
reasonable attorneys fees and costs and disbursements, in addition to any other
relief to which such party may be entitled. Notwithstanding the foregoing,
the
Company shall be entitled to seek equitable relief directly from a court of
competent jurisdiction (without prior arbitration) with respect to any alleged
breach of the Proprietary Agreement or Section 8, including specific performance
and injunctions, restraining Executive from committing or continuing to commit
such alleged breach.
13.
Successors.
Any
successor to the Company (whether direct or indirect and whether by purchase,
lease, merger, consolidation, liquidation or otherwise) to all or substantially
all of the Company’s business and/or assets shall assume the obligations under
this Agreement and agrees expressly to perform the obligations under this
Agreement in the same manner and to the same extent as the Company would be
required to perform such obligations in the absence of a succession. The terms
of this Agreement and all of Executive’s rights hereunder shall inure to the
benefit of, and be enforceable by, Executive’s personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees.
14.
Miscellaneous
Provisions.
14.1
Amendments
and Waivers.
Any
term of this Agreement may be amended or waived only with the written consent
of
the parties. The failure by either party to enforce any rights under this
Agreement shall not be construed as a waiver of any rights of such party.
14.2
Notices.
Any
notice required or permitted by this Agreement shall be in writing and shall
be
deemed sufficient upon receipt, when delivered personally or by a
nationally-recognized delivery service (such as Federal Express or UPS), or
48
hours after being deposited in the U.S. mail as certified or registered mail
with postage prepaid, if such notice is addressed to the party to be notified
at
such party’s address as set forth below or as subsequently modified by written
notice.
14.3
Choice
of Law.
The
validity, interpretation, construction and performance of this Agreement shall
be governed by the laws of the State of Washington, without giving effect to
its
or any other jurisdiction’s principles of conflict of laws.
14.4
Severability.
If one
or more provisions of this Agreement are held to be unenforceable under
applicable law, the parties agree to renegotiate such provision in good faith.
In the event that the parties cannot reach a mutually agreeable and enforceable
replacement for such provision, then (i) such provision shall be excluded from
this Agreement, (ii) the balance of the Agreement shall be interpreted as if
such provision were so excluded and (iii) the balance of the Agreement shall
be
enforceable in accordance with its terms.
14.5
Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed an
original, but all of which together will constitute one and the same instrument.
14.6
Advice
of Counsel.
Each
party to this agreement acknowledges that, in executing this Agreement, such
party has had the opportunity to seek the advice of independent legal counsel,
and has read and understood all of the terms and provisions of this Agreement.
This Agreement shall not be construed against any party by reason of the
drafting of preparation hereof.
The
parties have executed this Employment Agreement as of the date first written
above.
| COMPANY: | ||
| VOCALSCAPE NETWORKS, INC. | ||
| |
|
|
| By: | ||
|
Name: Xxx XxXxxxxx |
||
| Title: President | ||
| Address: 000 X. Xxxx Xxxx, Xxxxx 000 | ||
| Xxxxx Xxxxxx, Xxx Xxxx 00000 | ||
| EXECUTIVE: | ||
| |
|
|
| By: | /s/ | |
|
Name: Xxxxxx Xxxx |
||
| Address: _______________________ | ||
| ____________________ | ||
EXHIBIT
A
INDEMNIFICATION
AGREEMENT
This
Indemnification Agreement (the “Agreement”) is made as of September 22, by and
between Vocalscape Networks, Inc., a Nevada corporation (the “Company”), and
Xxxxxx Xxxx (the “Indemnitee”).
RECITALS
The
Company and Indemnitee recognize the increasing difficulty in obtaining
liability insurance for directors, officers and key employees, the significant
increases in the cost of such insurance and the general reductions in the
coverage of such insurance. The Company and Indemnitee further recognize the
substantial increase in corporate litigation in general, subjecting directors,
officers and key employees to expensive litigation risks at the same time as
the
availability and coverage of liability insurance has been severely limited.
Indemnitee does not regard the current protection available as adequate under
the present circumstances, and Indemnitee and agents of the Company may not
be
willing to continue to serve as agents of the Company without additional
protection. The Company desires to attract and retain the services of highly
qualified individuals, such as Indemnitee, and to indemnify its directors,
officers and key employees so as to provide them with the maximum protection
permitted by law.
AGREEMENT
In
consideration of the mutual promises made in this Agreement, and for other
good
and valuable consideration, receipt of which is hereby acknowledged, the Company
and Indemnitee hereby agree as follows:
1.
Indemnification.
(a)
Third
Party Proceedings.
The
Company shall indemnify Indemnitee if Indemnitee is or was a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Company) by reason of the fact
that Indemnitee is or was a director, officer, employee or agent of the Company,
or any subsidiary of the Company, by reason of any action or inaction on the
part of Indemnitee while an officer or director or by reason of the fact that
Indemnitee is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement (if such settlement is approved
in advance by the Company, which approval shall not be unreasonably withheld)
actually and reasonably incurred by Indemnitee in connection with such action,
suit or proceeding if Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe Indemnitee’s conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement, conviction,
or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create
a
presumption that Indemnitee did not act in good faith and in a manner which
Indemnitee reasonably believed to be in or not opposed to the best interests
of
the Company, or, with respect to any criminal action or proceeding, that
Indemnitee had reasonable cause to believe that Indemnitee’s conduct was
unlawful.
(b)
Proceedings
by or in the right of the Company.
The
Company shall indemnify Indemnitee if Indemnitee was or is a party or is
threatened to be made a party to any threatened, pending or completed action
or
proceeding by or in the right of the Company or any subsidiary of the Company
to
procure a judgment in its favor by reason of the fact that Indemnitee is or
was
a director, officer, employee or agent of the Company, or any subsidiary of
the
Company, by reason of any action or inaction on the part of Indemnitee while
an
officer or director or by reason of the fact that Indemnitee is or was serving
at the request of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys’ fees) and, to the fullest extent
permitted by law, amounts paid in settlement (if such settlement is approved
in
advance by the Company, which approval shall not be unreasonably withheld),
in
each case to the extent actually and reasonably incurred by Indemnitee in
connection with the defense or settlement of such action or suit if Indemnitee
acted in good faith and in a manner Indemnitee reasonably believed to be in
or
not opposed to the best interests of the Company and its stockholders, except
that no indemnification shall be made in respect of any claim, issue or matter
as to which Indemnitee shall have been finally adjudicated by court order or
judgment to be liable to the Company in the performance of Indemnitee’s duty to
the Company and its stockholders unless and only to the extent that the court
in
which such action or proceeding is or was pending shall determine upon
application that, in view of all the circumstances of the case, Indemnitee
is
fairly and reasonably entitled to indemnity for such expenses which such court
shall deem proper.
(c)
Mandatory
Payment of Expenses.
To the
extent that Indemnitee has been successful on the merits or otherwise in defense
of any action, suit or proceeding referred to in Section 1(a) or Section 1(b)
or
the defense of any claim, issue or matter therein, Indemnitee shall be
indemnified against expenses (including attorneys’ fees) actually and reasonably
incurred by Indemnitee in connection therewith.
2.
No
Employment Rights.
Nothing
contained in this Agreement is intended to create in Indemnitee any right to
continued employment.
3.
Expenses;
Indemnification Procedure.
(a)
Advancement
of Expenses.
The
Company shall advance all expenses incurred by Indemnitee in connection with
the
investigation, defense, settlement or appeal of any civil or criminal action,
suit or proceeding referred to in Section l(a) or Section 1(b) hereof (including
amounts actually paid in settlement of any such action, suit or proceeding).
Indemnitee hereby undertakes to repay such amounts advanced only if, and to
the
extent that, it shall ultimately be determined that Indemnitee is not entitled
to be indemnified by the Company as authorized hereby.
(b)
Notice/Cooperation
by Indemnitee.
Indemnitee shall, as a condition precedent to his or her right to be indemnified
under this Agreement, give the Company notice in writing as soon as practicable
of any claim made against Indemnitee for which indemnification will or could
be
sought under this Agreement. Notice to the Company shall be directed to the
President of the Company and shall be given in accordance with the provisions
of
Section 12(d) below. In addition, Indemnitee shall give the Company such
information and cooperation as it may reasonably require and as shall be within
Indemnitee’s power.
(c)
Procedure.
Any
indemnification and advances provided for in Section 1 and this Section 3 shall
be made no later than twenty (20) days after receipt of the written request
of
Indemnitee. If a claim under this Agreement, under any statute, or under any
provision of the Company’s Articles of Incorporation or Bylaws providing for
indemnification, is not paid in full by the Company within twenty (20) days
after a written request for payment thereof has first been received by the
Company, Indemnitee may, but need not, at any time thereafter bring an action
against the Company to recover the unpaid amount of the claim and, subject
to
Section 11 of this Agreement, Indemnitee shall also be entitled to be paid
for
the expenses (including attorneys’ fees) of bringing such action. It shall be a
defense to any such action (other than an action brought to enforce a claim
for
expenses incurred in connection with any action, suit or proceeding in advance
of its final disposition) that Indemnitee has not met the standards of conduct
which make it permissible under applicable law for the Company to indemnify
Indemnitee for the amount claimed, but the burden of proving such defense shall
be on the Company and Indemnitee shall be entitled to receive interim payments
of expenses pursuant to Section 3(a) unless and until such defense may be
finally adjudicated by court order or judgment from which no further right
of
appeal exists. It is the parties’ intention that if the Company contests
Indemnitee’s right to indemnification, the question of Indemnitee’s right to
indemnification shall be for the court to decide, and neither the failure of
the
Company (including its Board of Directors, any committee or subgroup of the
Board of Directors, independent legal counsel, or its stockholders) to have
made
a determination that indemnification of Indemnitee is proper in the
circumstances because Indemnitee has met the applicable standard of conduct
required by applicable law, nor an actual determination by the Company
(including its Board of Directors, any committee or subgroup of the Board of
Directors, independent legal counsel, or its stockholders) that Indemnitee
has
not met such applicable standard of conduct, shall create a presumption that
Indemnitee has or has not met the applicable standard of conduct.
(d)
Notice
to Insurers.
If, at
the time of the receipt of a notice of a claim pursuant to Section 3(b) hereof,
the Company has director and officer liability insurance in effect, the Company
shall give prompt notice of the commencement of such proceeding to the insurers
in accordance with the procedures set forth in the respective policies. The
Company shall thereafter take all necessary or desirable action to cause such
insurers to pay, on behalf of the Indemnitee, all amounts payable as a result
of
such proceeding in accordance with the terms of such policies.
(e)
Selection
of Counsel.
In the
event the Company shall be obligated under Section 3(a) hereof to pay the
expenses of any proceeding against Indemnitee, the Company, if appropriate,
shall be entitled to assume the defense of such proceeding, with counsel
approved by Indemnitee, upon the delivery to Indemnitee of written notice of
its
election so to do. After delivery of such notice, approval of such counsel
by
Indemnitee and the retention of such counsel by the Company, the Company will
not be liable to Indemnitee under this Agreement for any fees of counsel
subsequently incurred by Indemnitee with respect to the same proceeding,
provided that (i) Indemnitee shall have the right to employ counsel in any
such
proceeding at Indemnitee’s expense; and (ii) if (A) the employment of counsel by
Indemnitee has been previously authorized by the Company, (B) Indemnitee shall
have reasonably concluded that there may be a conflict of interest between
the
Company and Indemnitee in the conduct of any such defense or (C) the Company
shall not, in fact, have employed counsel to assume the defense of such
proceeding, then the fees and expenses of Indemnitee’s counsel shall be at the
expense of the Company.
4.
Additional
Indemnification Rights; Nonexclusivity.
(a)
Scope.
Notwithstanding any other provision of this Agreement, the Company hereby agrees
to indemnify the Indemnitee to the fullest extent permitted by law,
notwithstanding that such indemnification is not specifically authorized by
the
other provisions of this Agreement, the Company’s Articles of Incorporation, the
Company’s Bylaws or by statute. In the event of any change, after the date of
this Agreement, in any applicable law, statute, or rule which expands the right
of a Nevada corporation to indemnify a member of its board of directors or
an
officer, such changes shall be deemed to be within the purview of Indemnitee’s
rights and the Company’s obligations under this Agreement. In the event of any
change in any applicable law, statute or rule which narrows the right of a
Nevada corporation to indemnify a member of its board of directors or an
officer, such changes, to the extent not otherwise required by such law, statute
or rule to be applied to this Agreement shall have no effect on this Agreement
or the parties’ rights and obligations hereunder.
(b)
Nonexclusivity.
The
indemnification provided by this Agreement shall not be deemed exclusive of
any
rights to which Indemnitee may be entitled under the Company’s Articles of
Incorporation, its Bylaws, any agreement, any vote of stockholders or
disinterested members of the Company’s Board of Directors, the Nevada General
Corporation Law, or otherwise, both as to action in Indemnitee’s official
capacity and as to action in another capacity while holding such office. The
indemnification provided under this Agreement shall continue as to Indemnitee
for any action taken or not taken while serving in an indemnified capacity
even
though he or she may have ceased to serve in any such capacity at the time
of
any action, suit or other covered proceeding.
5.
Partial
Indemnification.
If
Indemnitee is entitled under any provision of this Agreement to indemnification
by the Company for some or a portion of the expenses, judgments, fines or
penalties actually or reasonably incurred in the investigation, defense, appeal
or settlement of any civil or criminal action, suit or proceeding, but not,
however, for the total amount thereof, the Company shall nevertheless indemnify
Indemnitee for the portion of such expenses, judgments, fines or penalties
to
which Indemnitee is entitled.
6.
Mutual
Acknowledgment.
Both
the Company and Indemnitee acknowledge that in certain instances, Federal law
or
public policy may override applicable state law and prohibit the Company from
indemnifying its directors and officers under this Agreement or otherwise.
For
example, the Company and Indemnitee acknowledge that the Securities and Exchange
Commission (the “SEC”) has taken the position that indemnification is not
permissible for liabilities arising under certain federal securities laws,
and
federal legislation prohibits indemnification for certain ERISA violations.
Indemnitee understands and acknowledges that the Company has undertaken or
may
be required in the future to undertake with the SEC to submit the question
of
indemnification to a court in certain circumstances for a determination of
the
Company’s right under public policy to indemnify Indemnitee.
7.
Officer
and Director Liability Insurance.
The
Company shall, from time to time, make the good faith determination whether
or
not it is practicable for the Company to obtain and maintain a policy or
policies of insurance with reputable insurance companies providing the officers
and directors of the Company with coverage for losses from wrongful acts, or
to
ensure the Company’s performance of its indemnification obligations under this
Agreement. Among other considerations, the Company will weigh the costs of
obtaining such insurance coverage against the protection afforded by such
coverage. In all policies of director and officer liability insurance,
Indemnitee shall be named as an insured in such a manner as to provide
Indemnitee the same rights and benefits as are accorded to the most favorably
insured of the Company’s directors, if Indemnitee is a director; or of the
Company’s officers, if Indemnitee is not a director of the Company but is an
officer; or of the Company’s key employees, if Indemnitee is not an officer or
director but is a key employee. Notwithstanding the foregoing, the Company
shall
have no obligation to obtain or maintain such insurance if the Company
determines in good faith that such insurance is not reasonably available, if
the
premium costs for such insurance are disproportionate to the amount of coverage
provided, if the coverage provided by such insurance is limited by exclusions
so
as to provide an insufficient benefit, or if Indemnitee is covered by similar
insurance maintained by a parent or subsidiary of the Company.
8.
Severability.
Nothing
in this Agreement is intended to require or shall be construed as requiring
the
Company to do or fail to do any act in violation of applicable law. The
Company’s inability, pursuant to court order, to perform its obligations under
this Agreement shall not constitute a breach of this Agreement. The provisions
of this Agreement shall be severable as provided in this Section 8. If this
Agreement or any portion hereof shall be invalidated on any ground by any court
of competent jurisdiction, then the Company shall nevertheless indemnify
Indemnitee to the full extent permitted by any applicable portion of this
Agreement that shall not have been invalidated, and the balance of this
Agreement not so invalidated shall be enforceable in accordance with
its
terms.
9.
Exceptions.
Any
other provision herein to the contrary notwithstanding, the Company shall not
be
obligated pursuant to the terms of this Agreement:
(a)
Claims
Initiated By Indemnitee.
To
indemnify or advance expenses to Indemnitee with respect to proceedings or
claims initiated or brought voluntarily by Indemnitee and not by way of defense,
except with respect to proceedings brought to establish or enforce a right
to
indemnification under this Agreement or any other statute or law or otherwise
as
required under the Nevada General Corporation Law, but such indemnification
or
advancement of expenses may be provided by the Company in specific cases if
the
Board of Directors finds it to be appropriate;
(b)
Lack
of Good Faith.
To
indemnify Indemnitee for any expenses incurred by Indemnitee with respect to
any
proceeding instituted by Indemnitee to enforce or interpret this Agreement,
if a
court of competent jurisdiction determines that each of the material assertions
made by Indemnitee in such proceeding was not made in good faith or was
frivolous;
(c)
Insured
Claims.
To
indemnify Indemnitee for expenses or liabilities of any type whatsoever
(including, but not limited to, judgments, fines, ERISA excise taxes or
penalties, and amounts paid in settlement) to the extent such expenses or
liabilities have been paid directly to Indemnitee by an insurance carrier under
a policy of officers’ and directors’ liability insurance maintained by the
Company; or
(d)
Claims
Under Section 16(b).
To
indemnify Indemnitee for expenses or the payment of profits arising from the
purchase and sale by Indemnitee of securities in violation of Section 16(b)
of
the Securities Exchange Act of 1934, as amended, or any similar successor
statute.
10.
Construction
of Certain Phrases.
(a)
For
purposes of this Agreement, references to the “Company” shall include, in
addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority
to
indemnify its directors, officers, and employees or agents, so that if
Indemnitee is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, Indemnitee shall stand in the same
position under the provisions of this Agreement with respect to the resulting
or
surviving corporation as Indemnitee would have with respect to such constituent
corporation if its separate existence had continued.
(b)
For
purposes of this Agreement, references to “Other Enterprises” shall include
employee benefit plans; references to “Fines” shall include any excise taxes
assessed on Indemnitee with respect to an employee benefit plan; and references
to “Serving at the Request of the Company” shall include any service as a
director, officer, employee or agent of the Company which imposes duties on,
or
involves services by, such director, officer, employee or agent with respect
to
an employee benefit plan, its participants, or beneficiaries; and if Indemnitee
acted in good faith and in a manner Indemnitee reasonably believed to be in
the
interest of the participants and beneficiaries of an employee benefit plan,
Indemnitee shall be deemed to have acted in a manner “Not Opposed to the Bests
Interests of the Company” as referred to in this Agreement.
11.
Attorneys’
Fees.
In the
event that any action is instituted by Indemnitee under this Agreement to
enforce or interpret any of the terms hereof, Indemnitee shall be entitled
to be
paid all court costs and expenses, including reasonable attorneys’ fees,
incurred by Indemnitee with respect to such action, unless as a part of such
action, the court of competent jurisdiction determines that each of the material
assertions made by Indemnitee as a basis for such action were not made in good
faith or were frivolous. In the event of an action instituted by or in the
name
of the Company under this Agreement or to enforce or interpret any of the terms
of this Agreement, Indemnitee shall be entitled to be paid all court costs
and
expenses, including attorneys’ fees, incurred by Indemnitee in defense of such
action (including with respect to Indemnitee’s counterclaims and cross-claims
made in such action), unless as a part of such action the court determines
that
each of Indemnitee’s material defenses to such action were made in bad faith or
were
frivolous.
12.
Miscellaneous.
(a)
Governing
Law.
This
Agreement and all acts and transactions pursuant hereto and the rights and
obligations of the parties hereto shall be governed, construed and interpreted
in accordance with the laws of the State of Washington, without giving effect
to
principles of conflict of law.
(b)
Entire
Agreement; Enforcement of Rights.
This
Agreement sets forth the entire agreement and understanding of the parties
relating to the subject matter herein and merges all prior discussions between
them. No modification of or amendment to this Agreement, nor any waiver of
any
rights under this Agreement, shall be effective unless in writing signed by
the
parties to this Agreement. The failure by either party to enforce any rights
under this Agreement shall not be construed as a waiver of any rights of such
party.
(c)
Construction.
This
Agreement is the result of negotiations between and has been reviewed by each
of
the parties hereto and their respective counsel, if any; accordingly, this
Agreement shall be deemed to be the product of all of the parties hereto, and
no
ambiguity shall be construed in favor of or against any one of the parties
hereto.
(d)
Notices.
Any
notice, demand or request required or permitted to be given under this Agreement
shall be in writing and shall be deemed sufficient when delivered personally
or
sent by telegram or forty-eight (48) hours after being deposited in the U.S.
mail, as certified or registered mail, with postage prepaid, and addressed
to
the party to be notified at such party’s address as set forth below or as
subsequently modified by written notice.
(e)
Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original and all of which together shall constitute one instrument.
(f)
Successors
and Assigns.
This
Agreement shall be binding upon the Company and its successors and assigns,
and
inure to the benefit of Indemnitee and Indemnitee’s heirs, legal representatives
and assigns.
(g)
Subrogation.
In the
event of payment under this Agreement, the Company shall be subrogated to the
extent of such payment to all of the rights of recovery of Indemnitee, who
shall
execute all documents required and shall do all acts that may be necessary
to
secure such rights and to enable the Company to effectively
bring
suit to enforce such rights.
The
parties hereto have executed this Agreement as of the day and year set forth
on
the first page of this Agreement.
| COMPANY: | ||
| VOCALSCAPE NETWORKS, INC. | ||
| |
|
|
| By: | ||
|
Name: Xxx XxXxxxxx |
||
| Title: President | ||
| Address: 000 X. Xxxx Xxxx, Xxxxx 000 | ||
| Xxxxx Xxxxxx, Xxx Xxxx 00000 | ||
AGREED TO AND ACCEPTED:
| INDEMNITEE: | ||
| |
|
|
| By: | /s/ | |
|
Name: Xxxxxx Xxxx |
||
| Address: _______________________ | ||
| ____________________ | ||
EXHIBIT
B
PROPRIETARY
INFORMATION AND
INVENTIONS
AGREEMENT
In
consideration of my employment or consultancy (as the case may be) by Vocalscape
Networks, Inc., a Nevada corporation (the “Company”, which term includes the
Company’s subsidiaries and any of its affiliates), any opportunity for
advancement or reassignment that the Company may offer me, the compensation
paid
to me in connection with such employment and any stock and/or stock options
which have been or may be granted to me by the Company, I, Xxxxxx Xxxx, hereby
agree as follows:
1.
Whenever used in this Agreement the following terms will have the following
meanings:
1.1
“Invention(s)”
means
discoveries, developments, designs, improvements, inventions and/or works of
authorship, whether or not patentable, copyrightable or otherwise legally
protectable. This includes, but is not limited to, any new machine, article
of
manufacture, biological material, method, process, technique, use, equipment,
device, apparatus, system, compound, formulation, composition of matter, design
or configuration of any kind, or any improvement thereon.
1.2
“Proprietary
Information”
means
information or physical material not generally known or available outside the
Company or information or physical material entrusted to the Company by third
parties. This includes, but is not limited to, Inventions, confidential
knowledge, trade secrets, copyrights, product ideas, techniques, processes,
formulas, object codes, biological materials such as nucleic acids, proteins,
organisms, strands, cell lines, antibodies or antigen source materials, or
fragments thereof, mask works and/or any other information of any type relating
to documentation, data, schematics, algorithms, flow charts, mechanisms,
research, manufacture, improvements, assembly, installation, marketing,
forecasts, pricing, customers, the salaries, duties, qualifications, performance
levels and terms of compensation of other employees, and/or cost or other
financial data concerning any of the foregoing or the Company and its
operations. Proprietary Information may be contained in material such as
drawings, samples, procedures, specifications, reports, studies, customer or
supplier lists, budgets, cost or price lists, compilations or computer programs,
or may be in the nature of unwritten knowledge or know-how.
1.3
“Company
Documents”
means
documents or other media that contain Proprietary Information or any other
information concerning the business, operations or plans of the Company, whether
such documents have been prepared by me or by others. “Company Documents”
include, but are not limited to, blueprints, drawings, photographs, charts,
graphs, notebooks, customer lists, computer disks, tapes or printouts, sound
recordings and other printed, typewritten or handwritten documents.
2.
I
understand that the Company is engaged in a continuous program of research,
development and production. I also recognize that the Company possesses or
has
rights to Proprietary Information (including certain information developed
by me
during my employment or consultancy (as the case may be) by the Company that
has
commercial value in the Company’s business.
3.
I
understand that the Company possesses Company Documents that are important
to
its business.
4.
I
understand and agree that my employment or consultancy (as the case may be)
creates a relationship of confidence and trust between me and the Company with
respect to (i) all Proprietary Information and (ii) the confidential information
of another person or entity with which the Company has a business relationship
and is required by terms of an agreement with such entity or person to hold
such
information as confidential. At all times, both during my employment or
consultancy (as the case may be) by the Company and after its termination,
I
will keep in confidence and trust all such information, and I will not use
or
disclose any such information without the written consent of the Company, except
as may be necessary in the ordinary course of performing my duties to the
Company.
5.
In
addition, I hereby agree as follows:
5.1
All
Proprietary Information will be the sole property of the Company and its
assigns, and the Company and its assigns will be the sole owner of all trade
secrets, patents, copyrights and other rights in connection therewith. I hereby
assign to the Company any rights I may presently have or I may acquire in such
Proprietary Information.
5.2
All
Company Documents, apparatus, equipment and other physical property, whether
or
not pertaining to Proprietary Information, furnished to me by the Company or
produced by me or others in connection with my employment or consultancy (as
the
case may be) will be and remain the sole property of the Company. I will return
to the Company all such Company Documents, materials and property as and when
requested by the Company, excepting only (i) my personal copies of records
relating to my compensation; (ii) my personal copies of any materials previously
distributed generally to stockholders of the Company; and (iii) my copy of
this
Agreement (my “Personal Documents”). Even if the Company does not so request, I
will return all such Company Documents, materials and property upon termination
of my employment or consultancy (as the case may be) by me or by the Company
for
any reason, and, except for my Personal Documents, I will not take with me
any
such Company Documents, material or property or any reproduction thereof upon
such termination.
5.3
I
will promptly disclose to the Company, or any persons designated by it, all
Inventions relating to the Field, as defined below, made or conceived, reduced
to practice or learned by me, either alone or jointly with others, prior to
the
term of my employment or consultancy (as the case may be) and for one (1) year
thereafter. For purposes of this Agreement, “Field” means research, development,
marketing or manufacturing of any products also researched, developed, marketed
or manufactured by the Company.
5.4
All
Inventions that I conceive, reduce to practice, develop or have developed (in
whole or in part, either alone or jointly with others) during the term of my
employment or consultancy (as the case may be) will be the sole property of
the
Company and its assigns to the maximum extent permitted by law (and to the
fullest extent permitted by law will be deemed “works made for hire”), and the
Company and its assigns will be the sole owner of all patents, copyrights and
other rights in connection therewith. I hereby assign to the Company my entire
right, title and interest, whether possessed now or later acquired, in such
Inventions. I agree that any Invention required to be disclosed under paragraph
(c) above within one (1) year after the term of my employment or consultancy
(as
the case may be) will be presumed to have been conceived during my employment
or
consultancy (as the case may be). I understand that I may overcome the
presumption by showing that such Invention was conceived after the termination
of my employment or consultancy (as the case may be).
NOTICE
REQUIRED BY REVISED CODE OF WASHINGTON 49.44.140: ANY ASSIGNMENT OF INVENTIONS
REQUIRED BY THIS AGREEMENT DOES NOT APPLY TO AN INVENTION FOR WHICH NO
EQUIPMENT, SUPPLIES, FACILITIES OR TRADE SECRET INFORMATION OF THE COMPANY
WAS
USED AND WHICH WAS DEVELOPED ENTIRELY ON THE EMPLOYEE’S OWN TIME, UNLESS (a) THE
INVENTION RELATES (i) DIRECTLY TO THE BUSINESS OF THE COMPANY OR (ii) TO THE
COMPANY’S ACTUAL OR DEMONSTRABLY ANTICIPATED RESEARCH OR DEVELOPMENT, OR (b) THE
INVENTION RESULTS FROM ANY WORK PERFORMED BY THE EMPLOYEE FOR THE COMPANY.
5.5
During or after my employment, upon the Company’s request and at the company’s
expense, I will execute all papers in a timely manner and do all acts necessary
to apply for, secure, maintain or enforce patents, copyrights and any other
legal rights in the United States and foreign countries in Inventions assigned
to the Company under this Agreement, and I will execute all papers and do any
and all acts necessary to assign and transfer to the Company or any person
or
party to whom the Company is obligated to assign its rights, my entire right,
title and interest in and to such Inventions. This obligation will survive
the
termination of my employment or consultancy (as the case may be), but the
Company will compensate me at a reasonable rate after such termination for
time
actually spent by me at the Company’s request on such assistance. In the event
that the Company is unable for any reason whatsoever to secure my signature
to
any document reasonably necessary or appropriate for any of the foregoing
purposes, (including renewals, extensions, continuations, divisions or
continuations in part), I hereby irrevocably designate and appoint the Company
and its duly authorized officers and agents as my agents and attorneys-in-fact
to act for and in my behalf and instead of me, but only for the purpose of
executing and filing any such document and doing all other lawfully permitted
acts to accomplish the foregoing purposes with the same legal force and effect
as if executed by me.
5.6
So
that the Company may be aware of the extent of any other demands upon my time
and attention, I will disclose to the Company (such disclosure to be held in
confidence by the Company) the nature and scope of any other business activity
in which I am or become engaged during the term of my employment or consultancy
(as the case may be). During the term of my employment or consultancy (as the
case may be), I will not engage in any other business activity that is related
to the Company’s business or its actual or demonstrably anticipated research and
development.
6.
As a
matter of record I attach hereto as Exhibit
A
a
complete list of all Inventions (including patent applications and patents)
relevant to the Field that have been made, conceived, developed or first reduced
to practice by me, alone or jointly with others, prior to my employment or
consultancy (as the case may be) with the Company that I desire to remove from
the operation of this Agreement, and I covenant that such list is complete.
If
no such list is attached to this Agreement, I represent that I have no such
Inventions at the time of signing this Agreement. If in the course of my
employment or consultancy with the Company, I use or incorporate into a product
or process an Invention not covered by Paragraph 5(d) of this Agreement in
which
I have an interest, the Company is hereby granted a nonexclusive, fully paid-up,
royalty-free, perpetual, worldwide license of my interest to use and sublicense
such Invention without restriction of any kind.
7.
I
represent that my execution of this Agreement, my employment or consultancy
(as
the case may be) with the Company and my performance of my proposed duties
to
the Company in the development of its business will not violate any obligations
I may have to any former employer, or other person or entity, including any
obligations to keep confidential any proprietary or confidential information
of
any such employer. I have not entered into, and I will not enter into, any
agreement that conflicts with or would, if performed by me, cause me to breach
this Agreement.
8.
In the
course of performing my duties to the Company, I will not utilize any
proprietary or confidential information of any former employer.
9.
I
agree that this Agreement does not constitute an employment or consultancy
(as
the case may be) agreement for a specific duration and that, unless otherwise
provided in a written contract signed by both an officer of the Company and
me.
10.
This
Agreement will be effective as of the first day of my employment or consultancy
(as the case may be) by the Company and the obligations hereunder will continue
beyond the termination of my employment and will be binding on my heirs, assigns
and legal representatives. This Agreement is for the benefit of the Company,
its
successors and assigns (including all subsidiaries, affiliates, joint ventures
and associated companies) and is not conditioned on my employment for any period
of time or compensation therefor. I agree that the Company is entitled to
communicate any obligations under this Agreement to any future employer or
potential employer of mine.
11.
During the term of my employment and for two (2) years thereafter, I will not,
without the Company’s written consent, directly or indirectly be employed or
involved with any business developing or exploiting any products or services
that are competitive with products or services (a) being commercially developed
or exploited by the Company during my employment and (b) on which I worked
or
about which I learned Proprietary Information during my employment with the
Company.
12.
During the term of my employment and for two (2) years thereafter, I will not
personally or through others recruit, solicit or induce in any way any employee,
advisor or consultant of the Company to terminate his or her relationship with
the Company.
13.
I
acknowledge that any violation of this Agreement by me will cause irreparable
injury to the Company and I agree that the Company will be entitled to
extraordinary relief in court, including, but not limited to, temporary
restraining orders, preliminary injunctions and permanent injunctions without
the necessity of posting a bond or other security and without prejudice to
any
other rights and remedies that the Company may have for a breach of this
Agreement.
14.
I
agree that any dispute in the meaning, effect or validity of this Agreement
will
be resolved in accordance with the laws of the state of Washington without
regard to its or any other jurisdiction’s conflict of laws provisions. I further
agree that if one or more provisions of this Agreement are held to be
unenforceable under applicable Washington law, such provision(s) will be
excluded from this Agreement and the balance of the Agreement will be
interpreted as if such provision were so excluded and will be enforceable in
accordance with its terms.
15.
I
HAVE READ AND UNDERSTOOD THIS AGREEMENT. THIS AGREEMENT MAY ONLY BE MODIFIED
BY
A SUBSEQUENT WRITTEN AGREEMENT EXECUTED BY AN OFFICER OF THE COMPANY.
Dated:
September 22, 2006.
| By: | |||
|
Name: Xxxxxx Xxxx |
|||
Accepted
and Agreed to:
| By: | |||
|
Name: Xxx XxXxxxxx |
|||
| Title: President |
EXHIBIT
A
000
X.
Xxxx Xxxx, Xxxxx 000
Xxxxx
Xxxxxx, Xxx Xxxx 00000
Ladies
and Gentlemen:
1.
The
following is a complete list of all inventions or improvements relevant to
the
subject matter of my employment or consultancy (as the case may be) by
Vocalscape Networks, Inc. (the “Company”) that have been made or conceived or
first reduced to practice by me, alone or jointly with others, prior to my
employment or consultancy (as the case may be) by the Company that I desire
to
remove from the operation of the Proprietary Information and Inventions
Agreement entered into between the Company and me.
| No inventions or improvements. | |||
|
|
|||
| Any and all inventions regarding: | |||
|
|
| Additional sheets attached. | |||
|
|
2.
I
propose to bring to my employment or consultancy (as the case may be) the
following materials and documents of a former employer:
| No materials or documents. | |||
|
|
|||
| See below: | |||
|
|
| By: | |||
|
Name: Xxxxxx Xxxx |
|||
