Exhibit 10.1
PROTOCALL TECHNOLOGIES INCORPORATED
SENIOR LEVEL EXECUTIVE OFFICER EMPLOYMENT AGREEMENT
This Senior Level Executive Officer Employment Agreement (the "Agreement") is
made and entered into as of June 8, 2005, by and between Protocall Technologies
Incorporated, a Nevada corporation, including its subsidiaries, affiliates and
successors (the "Company"), and Xxxx Xxxxxxxx ("Executive").
RECITALS
A. The Company and Executive entered into this Agreement as of June 8, 2005 and
the parties acknowledge that the provisions hereof are binding as of such date.
B. The option grants contemplated pursuant to Section 4.3 of this Agreement were
granted effective as of June 8, 2005 and the board of directors of the Company
approves, ratifies, confirms and approves the option grants as of such date.
AGREEMENT
The parties agree as follows:
1. EMPLOYMENT The Company hereby employs Executive, and Executive hereby accepts
such employment, upon the terms and conditions set forth herein.
2. DUTIES
2.1 SENIOR LEVEL EXECUTIVE POSITION Executive will be employed as the Chief
Executive Officer of the Company, or in such other senior level executive
position as directed by the Company's Board of Directors (the "Board of
Directors"), and shall have the duties and responsibilities as assigned by the
Board of Directors, both upon initial hire and as may be reasonably assigned
from time to time. Executive shall perform faithfully and diligently all duties
assigned to Executive by the Board of Directors. The Company reserves the right
to modify Executive's position and duties at any time in its sole and absolute
discretion, provided that the duties assigned are consistent with the position
of a senior executive and that Executive continues to report to the Board of
Directors.
2.2 CORPORATE DIRECTOR Executive shall serve as a member of the Company's
Board of Directors. While serving in this capacity, Executive shall be the Chair
of the Technology Committee responsible for reviewing and advising the Company
on technology matters related to product strategy, conceptualization,
architecture, design, research and development, project build-out and roll-out
planning along with the necessary financial structures (budgeting and investing
plans) required to achieve such goals.
2.3 BEST EFFORTS/FULL-TIME Executive will expend his best efforts on behalf
of the Company, and will abide by all policies of the Company, as well as all
applicable federal, state and local laws, regulations or ordinances. Executive
will act in the best interest of the Company at all times. Executive shall
devote Executive's full business time and efforts to the performance of
Executive's assigned duties for the Company, unless Executive notifies the Board
of Directors in advance of Executive's intent to engage in other paid work and
receives the Board of Directors' express written consent to do so. Executive
shall have the ability to operate in an external consultancy role to Microsoft
Corporation for a period of up to one-hundred and twenty (120) days after he
commences employment with the Company to assist with a transition from his
former senior management position as necessary. Executive shall give the Board
of Directors an opportunity to review and approve any such consulting
agreement(s) in advance of agreement and sign-off between Executive and
Microsoft for services to be performed.
2.4 WORK LOCATION Executive's principal place of work shall be located in
Commack, New York for the first three months of this Agreement, then Kirkland,
Washington, thereafter, or such other location as the parties may agree upon
from time to time.
3. Term
3.1 SENIOR LEVEL EXECUTIVE POSITION INITIAL TERM The employment
relationship pursuant to this Agreement shall be for an initial term commencing
on July 1, 2005 and continuing for a period of two years following such date
(the "Initial Term"), unless sooner terminated in accordance with Section 7
below.
3.2 SENIOR LEVEL EXECUTIVE POSITION RENEWAL TERMS On completion of the
Initial Term specified in Section 3.1 above, this Agreement will automatically
renew for subsequent two year terms unless either party provides sixty (60)
days' advance written notice to the other that Company/Executive does not wish
to renew the Agreement for a subsequent two year renewal term. In the event
either party gives notice of non-renewal pursuant to this Section 0, this
Agreement will expire at the end of the current term. Any termination pursuant
to this Section 3.2 will be subject to the provisions of Section 7.
4. Compensation
4.1 BASE SALARY As compensation for Executive's execution of Executive's
duties hereunder, the Company shall pay to Executive an initial Base Salary of
$240,000.00 per year, payable in accordance with the normal payroll practices of
the Company, less required deductions for state and federal withholding tax,
social security and all other employment taxes and payroll deductions. In the
event Executive's employment under this Agreement is terminated by either party,
for any reason, Executive will, subject to Section 7, earn the Base Salary
prorated to the date of termination.
4.2 INCENTIVE COMPENSATION Executive will be eligible to receive incentive
compensation, the terms, amount and payment of which shall be determined by the
Board of Directors. Not later than October 3, 2005, Executive and the Board of
Directors will formulate and agree upon an incentive-based bonus plan for the
twelve-month period ending July 1, 2006. Thereafter, Executive and the Board of
Directors will formulate and agree upon the incentive-based bonus plan for
subsequent twelve-month periods ending on July 1 of each year, not later than
thirty (30) days prior to the expiration of the then-current twelve-month
period. The review and analysis period concerning Executive's bonus shall
commence within thirty (30) days of the close of the designated twelve-month
period. The Board of Directors shall then determine the percentage, if any, of
the performance goals that have been achieved for the designated period and will
pay Executive any bonus within sixty (60) days of the end of the designated
twelve-month period.
4.3 Stock Options
(a) The Company hereby grants to Executive pursuant to the Company's
Stock Option Plan (the "Plan") a nonqualified stock option (the "Option") to
purchase 1,600,000 shares of common stock of the Company (the "Common Stock") at
an exercise price equal to the fair market value of the Common Stock on the date
of grant of June 8, 2005. The terms and conditions of exercise for the Option
will be the same as provided to the Company's other senior executive officers.
The Option will vest and become exercisable ratably on a quarterly basis over
twenty-four (24) months commencing on July 1, 2005, subject to Executive
continuous service as described in this Agreement. The Option will have a ten
year life. Further, the Option will vest completely upon either a change of
control, sale or merger of the Company, or upon Executive's discharge by the
Company for any reason except for Cause or voluntary resignation unrelated to
any conflict of interest that may arise between the Company and Microsoft.
Except as provided in this Section 4.3(a), the Option shall in all respects be
subject to the terms and conditions of the Plan.
(b) The Company will grant to Executive pursuant to the Plan a
nonqualified stock option (the "Fully-Vested Option") to purchase 200,000 shares
of Common Stock at an exercise price equal to $1.00 per share (which the parties
acknowledge is greater than the fair market value of the Common Stock as of the
date of grant). The terms and conditions of exercise for the Fully-Vested Option
will be the same as provided to the Company's other senior executive officers.
The Fully-Vested Option will vest fully and immediately upon grant. The
Fully-Vested Option will have a ten year life.
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(c) The Company will grant to Executive pursuant to the Plan a
nonqualified stock option ("Premium Option") to purchase 41,667 shares of Common
Stock at an exercise price equal to $1.35 per share (which the parties
acknowledge is greater than the fair market value of the Common Stock as of the
date of grant). The terms and conditions of exercise for the Premium Option will
be the same as provided to the Company's other senior executive officers. The
Premium Option will vest fully and immediately. The Premium Option will have a
five year life.
4.4 PERFORMANCE AND SALARY REVIEW The Board of Directors will periodically
(but no less frequently than annually) review Executive's performance.
Adjustments to salary or other compensation, if any, will be made by the Board
of Directors in its sole and absolute discretion.
5. BENEFITS Executive will be eligible for all customary and usual fringe
benefits generally available to executives of the Company subject to the terms
and conditions of the Company's benefit plan documents. The Company reserves the
right to change or eliminate the fringe benefits on a prospective basis, at any
time, effective upon notice to Executive. The exceptions are noted as follows:
5.1 PERSONAL TIME/SICK LEAVE Executive shall be entitled to up to fourteen
working days per year.
5.2 VACATION Three weeks vacation per year ramping to four after one years
of service. Executive may elect to roll-over, at his discretion, up to two weeks
of vacation time on an annual basis.
5.3 LIFE INSURANCE The Company will provide a $1,000,000.00 Accidental Life
Insurance Policy for Executive's family.
5.4 HEALTH INSURANCE Executive may choose to select either the Company's
medical plan offering or the Microsoft Corporation COBRA insurance (for up to
the maximum allowable length permissible) as the medical plan provided as part
of the standard benefits package.
5.5 CAREER DEVELOPMENT Executive shall be reimbursed for all reasonable
advanced seminars, conferences and academic forums with the explicit intent of
advancing Company interests.
5.6 TEMPORARY RELOCATION While Executive works at the Company's Commack
facilities, there will be reimbursement for temporary housing at up to $2500.00
per month. In addition, there will be reimbursement for a rental car.
6. Business Expenses Executive will be reimbursed for all reasonable,
out-of-pocket business expenses incurred in the performance of Executive's
duties on behalf of the Company. To obtain reimbursement, expenses must be
submitted promptly with appropriate supporting documentation in accordance with
the Company's policies. The Company agrees that Executive shall be reimbursed
for business class travel for all flights in excess of 1,000 miles. Executive
shall be reimbursed for pre-approved purchases of all necessary computing and
telecommunications equipment that is deemed to be essential in order to conduct
his duties as called upon by the Board of Directors.
7. Termination of Executive's Employment
7.1 TERMINATION FOR CAUSE BY THE COMPANY Although the Company anticipates a
mutually rewarding employment relationship with Executive, the Company may
terminate Executive's employment immediately at any time for Cause. For purposes
of this Agreement, "Cause" is defined as: (a) acts or omissions constituting
gross negligence, recklessness or willful misconduct on the part of Executive
with respect to Executive's obligations or otherwise relating to the business of
the Company; (b) Executive's material breach of this Agreement or the Company's
form of employee innovations and proprietary rights agreement signed by
Executive; (c) Executive's conviction or entry of a plea of nolo contendere for
fraud, misappropriation or embezzlement, or any felony or crime of moral
turpitude; (d) Executive's willful neglect of duties as determined in the sole
and exclusive discretion of the Board of Directors; (e) Executive's failure to
perform the essential functions of Executive's position, with or without
reasonable accommodation, due to a mental or physical disability; or (f)
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Executive's death. In the event Executive's employment is terminated in
accordance with this Section 7.1, Executive shall be entitled to receive only
the Base Salary then in effect, prorated to the date of termination. All other
Company obligations to Executive pursuant to this Agreement will become
automatically terminated and completely extinguished. Executive will not be
entitled to receive the Severance Payment described in Section 7.2 below.
7.2 TERMINATION WITHOUT CAUSE BY THE COMPANY/SEVERANCE The Company may
terminate Executive's employment under this Agreement without Cause at any time
on sixty (60) days' advance written notice to Executive. In the event of such
termination, Executive will be entitled to receive the Base Salary then in
effect, prorated to the date of termination, and a "Severance Payment" equal to
one hundred seventeen (117%) of Base Salary (equal to an additional fourteen
(14) months of service) then in effect plus any incentive compensation Executive
is then entitled pursuant to Section 4.2 (prorated to the date of termination),
payable in accordance with the Company's regular payroll cycle or lump sum as
determined by the Board of Directors, provided that Executive: (a) complies with
all surviving provisions of this Agreement as specified in Section 0 below; (b)
executes a full general release, releasing all claims, known or unknown, that
Executive may have against the Company arising out of or any way related to
Executive's employment or termination of employment with the Company; and (c)
agrees to act as a consultant for the Company, with further specified
compensation, for up to ninety (90) days following the termination of the
employment relationship, if requested to do so by the Company. All other Company
obligations to Executive will be automatically terminated and completely
extinguished.
7.3 VOLUNTARY RESIGNATION BY EXECUTIVE FOR GOOD REASON/SEVERANCE Executive
may voluntarily resign Executive's position with the Company for Good Reason, at
any time on sixty (60) days' advance written notice. In the event of Executive's
resignation for Good Reason, Executive will be entitled to receive the Base
Salary then in effect, prorated to the as agreed-upon date of termination, and
the Severance Payment described in Section 7.2 above, provided Executive
complies with all of the conditions in Section 7.2 above. All other Company
obligations to Executive pursuant to this Agreement will become automatically
terminated and completely extinguished. For purposes of this Agreement, "Good
Reason" means: (a) the Company's material breach of this Agreement; (b)
Executive's Base Salary is reduced by more than 25% below Executive's salary in
effect at any time during the preceding twelve months, unless the reduction is
made as part of, and is generally consistent with, a general reduction of senior
executive salaries; (c) Executive's position and/or duties are modified so that
Executive's duties are no longer consistent with the position of a senior
executive or Executive no longer reports to the Board of Directors; (d) the
Company relocates Executive's principal place of work to a location more than
seventy-five (75) miles from the location specified in Section 0, without
Executive's prior written approval; or (e) the failure of the Board of Directors
to allocate the necessary financial and personnel resources to allow Executive
to fully execute on, and consummate, the Company's yearly Strategic Plan. The
"Strategic Plan" means a document outlining the strategic plan for the Company
as adopted by the Board of Directors after consultation with Executive, which
Strategic Plan will be documented in final form by May 1 of each year (or by the
close of business on October 3, 2005 during the first year of this Agreement).
7.4 VOLUNTARY RESIGNATION BY EXECUTIVE WITHOUT GOOD REASON Executive may
voluntarily resign Executive's position with the Company without Good Reason, at
any time on sixty (60) days' advance written notice. In the event of Executive's
resignation without Good Reason, Executive will be entitled to receive only the
Base Salary then in effect, prorated to the as agreed-upon date of termination,
and an amount equal to seventeen percent (17%) of Base Salary (equal to an
additional two (2) months of service) then in effect, payable in accordance with
the Company's regular payroll cycle or lump sum as determined by the Board of
Directors. All other Company obligations to Executive pursuant to this Agreement
will become automatically terminated and completely extinguished.
7.5 Termination Upon A Change of Control
(a) SEVERANCE PAYMENT If Executive's employment is terminated by the
Company within twelve (12) months after a Change of Control (as that term is
defined below), other than for Cause (as defined in Section 7.1 above),
Executive shall be entitled to receive the Severance Payment described in
Section 7.2 above, provided Executive complies with all the conditions described
in Section 7.2 above.
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(b) 280G If, due to the benefits provided under Section 0(a) above,
Executive is subject to any excise tax due to characterization of any amounts
payable under Section 7.5(a) as excess parachute payments pursuant to Section
4999 of the Internal Revenue Code of 1986, as amended (the "Code"), the amounts
payable under Section 0 will be reduced (to the least extent possible) in order
to avoid any "excess parachute payment" under Section 280G(b)(1) of the Code.
(c) CHANGE OF CONTROL A Change of Control is defined as any one of the
following occurrences:
(i) Any "person" (as such term is used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934 (the "Exchange Act")), other than a trustee
or other fiduciary holding securities of the Company under an employee benefit
plan of the Company, becomes the "beneficial owner" (as defined in Rule 13d-3
promulgated under the Exchange Act), directly or indirectly, of the securities
of the Company representing more than 50% of (A) the outstanding shares of
Common Stock, or (B) the combined voting power of the Company's then-outstanding
securities; or:
(ii) The sale or disposition of all or substantially all of the
Company's assets (or any transaction having similar effect is consummated); or
(iii) The Company is party to a merger or consolidation that results in
the holders of voting securities of the Company outstanding immediately prior
thereto failing to continue to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) more than 50% of
the combined voting power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or consolidation; or
(iv) the dissolution or liquidation of the Company.
8. NO CONFLICT OF INTEREST During the term of Executive's employment with the
Company and during any period Executive is receiving payments from the Company
pursuant to this Agreement, Executive must not engage in any work, paid or
unpaid, that creates an actual conflict of interest with the Company. Such work
shall include, but is not limited to, directly or indirectly competing with the
Company in any way, or acting as an officer, director, employee, consultant,
stockholder, volunteer, lender, or agent of any business enterprise of the same
nature as, or which is in direct competition with, the business in which the
Company is now engaged or in which the Company becomes engaged during the term
of Executive's employment with the Company, as may be determined by the Board of
Directors in its sole discretion. If the Board of Directors believes such a
conflict exists during the term of this Agreement, the Board of Directors may
ask Executive to choose to discontinue the other work or resign employment with
the Company. If the Board of Directors believes such a conflict exists during
any period in which Executive is receiving payments pursuant to this Agreement,
the Board of Directors may ask Executive to choose to discontinue the other work
or forfeit the remaining severance payments. In addition, Executive agrees not
to refer any client or potential client of the Company to competitors of the
Company, without obtaining the Company's prior written consent, during the term
of Executive's employment and during any period in which Executive is receiving
payments from the Company pursuant to this Agreement.
9. PUBLICITY AND PRIVACY Executive acknowledges that from time to time the
Company plans to list the names and background of all of its senior executives
in materials describing the Company. The Company agrees to obtain Executive's
prior written approval of the text describing Executive and his background and
will not disclose other information about Executive without his prior written
consent, except to the extent required by applicable law, rule or regulation.
10. INDEMNIFICATION The Company shall indemnify Executive to the fullest extent
permitted by Nevada law, consistent with the Company's Certificate of
Incorporation and By-laws. Without limiting the foregoing, the Company
specifically agrees to indemnify and hold Executive harmless from and against
any and all claims, losses or damages and expenses (including reasonable
attorneys' fees), judgments, fines, settlements and other amounts actually
incurred in connection with any proceeding arising by reason of Executive
serving the Company with respect to any past acts committed by the Company prior
to the signing of this agreement. The scope of
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indemnification provided hereby includes, without limitation, any loss of income
or other consequential damages suffered by Executive as a consequence of any
claims made by any party or any ensuing claim resolution process. The Company
shall advance to Executive any expenses incurred in defending any such
proceeding to the maximum extent permitted by law.
11. Confidential Information
11.1 DEFINITION OF CONFIDENTIAL INFORMATION "Confidential Information" as
used in this Agreement shall mean any and all technical and non-technical
information including patent, copyright, trade secret, and proprietary
information, techniques, sketches, drawings, models, inventions, know-how,
processes, apparatus, equipment, algorithms, software programs, software source
documents, and formulae related to the current, future and proposed products and
services of the Company, its suppliers and customers, and includes, without
limitation, its respective information concerning research, experimental work,
development, design details and specifications, engineering, financial
information, procurement requirements, purchasing manufacturing, customer lists,
business forecasts, sales and merchandising and marketing plans and information.
"Confidential Information" also includes proprietary or confidential information
of any third party who may disclose such information to the Company or Executive
in the course of the Company's business.
11.2 NON-DISCLOSURE AND NON-USE OBLIGATIONS Executive will use the
Confidential Information solely to perform his duties for the benefit of the
Company. Executive will immediately give notice to the Company of any
unauthorized use or disclosure of the Confidential Information. Executive agrees
to assist the Company in remedying any such unauthorized use or disclosure of
the Confidential Information.
11.3 EXCLUSIONS FROM NON-DISCLOSURE AND NON-USE OBLIGATIONS Executive's
obligations under Section 11.2 as noted above with respect to any portion of
Confidential Information shall not apply to any information that (a) was in the
public domain at or subsequent to the time it was communicated to Executive by
the disclosing party through no fault of Executive, (b) was rightfully in
Executive's possession free of any obligation of confidence at or subsequent to
the time it was communicated to Executive by the disclosing party, (c) was
developed by employees or agents of Executive independently of and without
reference to any information communicated to Executive by the disclosing party,
or (d) is being disclosed by Executive in response to a valid order by a court
or other governmental body, or otherwise as required by law, or as necessary to
establish the rights of either party under this Agreement.
11.4 DISCLOSURE OF THIRD PARTY INFORMATION Neither party shall communicate
any information to the other in violation of the proprietary rights of any third
party.
12. Disclosure and Assignment of Intellectual Property
12.1 INTELLECTUAL PROPERTY "Intellectual Property" includes any and all new
or useful art, discovery, improvement, technical development, or invention,
whether or not patentable, and all related know-how, designs, mask works,
trademarks, formulae, processes, manufacturing techniques, trade secrets, ideas,
artworks, software or other copyrightable or patentable work, that Executive,
solely or jointly with others, makes, conceives or reduces to practice within
the scope of Executive's work for the Company under this Agreement.
12.2 DISCLOSURE AND OWNERSHIP OF INTELLECTUAL PROPERTY Executive agrees to
promptly disclose every item of Intellectual Property. Executive hereby assigns
and agrees to assign to the Company or its designee its entire right, title and
interest worldwide in all such Intellectual Property and any associated
intellectual property rights.
12.3 ASSISTANCE Executive agrees to assist the Company in any reasonable
manner to obtain and enforce for the Company's benefit patents, copyrights, mask
works, and other property rights in any and all countries, and Executive agrees
to execute, when requested, patent, copyright or similar applications and
assignments to the Company and any other lawful documents deemed necessary by
the Company to carry out the purpose of this Agreement. If called upon to render
assistance under this paragraph, Executive will be entitled to a fair and
reasonable fee in addition to reimbursement of authorized expenses incurred at
the prior written request of
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the Company. In the event that the Company is unable for any reason to secure
Executive's signature to any document required to apply for or execute any
patent, copyright or other applications with respect to any Intellectual
Property (including improvements, renewals, extensions, continuations, divisions
or continuations in part thereof), Executive hereby irrevocably designates and
appoints the Company and its duly authorized officers and agents as Executive's
agents and attorneys-in-fact to act for and in Executive's behalf and instead of
Executive, to execute and file any such application and to do all other lawfully
permitted acts to further the prosecution and issuance of patents, copyrights,
mask works or other rights thereon with the same legal force and effect as if
executed by Executive.
12.4 EXCEPTION Executive understands, and the Company acknowledges, that
Executive's obligation to assign any Intellectual Property must comply with the
requirements of Chapter 49.44.140 of the Revised Code of Washington. Pursuant to
this Washington statute, Section 11 of this Agreement does not apply to, and
Executive does not assign his rights to any Intellectual Property when Executive
can prove that: (a) he developed the Intellectual Property entirely on his own
time; (b) he did not use the Company's equipment, supplies, facilities, or trade
secret information in its development; (c) the Intellectual Property does not
relate (i) directly to the business of Company, or (ii) to the actual or
demonstrably anticipated research or development of Company; and (d) the
Intellectual Property does not result from any work performed by Executive for
the Company. This Section will be construed to apply to all Intellectual
Property with which Executive is involved from this date forward.
13. NON-SOLICITATION
13.1 NON-SOLICITATION OF CUSTOMERS OR PROSPECTS Executive agrees that
during the term of this Agreement and for a period of one (1) year after the
termination of Executive's employment with the Company, Executive will not,
either directly or indirectly, separately or in association with others,
interfere with, impair, disrupt or damage the Company's relationship with any of
its customers or customer prospects by soliciting or encouraging others to
solicit any of them for the purpose of diverting or taking away business from
the Company.
13.2 NON-SOLICITATION OF THE COMPANY'S EMPLOYEES Executive agrees that
during the term of this Agreement and for a period of one (1) year after the
termination of Executive's employment with the Company, Executive will not,
either directly or indirectly, separately or in association with others,
interfere with, impair, disrupt or damage the Company's business by soliciting,
encouraging or attempting to hire any of the Company's employees or causing
others to solicit or encourage any of the Company's employees to discontinue
their employment with the Company.
14. INJUNCTIVE RELIEF Executive acknowledges that Executive's breach of the
covenants contained in Sections 8-13 (collectively "Covenants") would cause
irreparable injury to the Company and agrees that in the event of any such
breach, the Company shall be entitled to seek temporary, preliminary and
permanent injunctive relief without the necessity of proving actual damages or
posting any bond or other security.
15. AGREEMENT TO ARBITRATE To the fullest extent permitted by law, Executive and
the Company agree to arbitrate any controversy, claim or dispute between them
arising out of or in any way related to this Agreement, the employment
relationship between the Company and Executive and any disputes upon termination
of employment, including but not limited to breach of contract, tort,
discrimination, harassment, wrongful termination, demotion, discipline, failure
to accommodate, family and medical leave, compensation or benefits claims,
constitutional claims; and any claims for violation of any local, state or
federal law, statute, regulation or ordinance or common law. Claims for workers'
compensation, unemployment insurance benefits, breach of the Company's employee
innovations and proprietary rights agreement signed by Executive and the
Company's right to obtain injunctive relief pursuant to Section 04 above are
excluded. For the purpose of this agreement to arbitrate, references to
"Company" include all parent, subsidiary or related entities and their
employees, supervisors, officers, directors, agents, pension or benefit plans,
pension or benefit plan sponsors, fiduciaries, administrators, affiliates and
all successors and assigns of any of them, and this Agreement shall apply to
them to the extent Executive's claims arise out of or relate to their actions on
behalf of the Company.
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15.1 CONSIDERATION The mutual promise by the Company and Executive to
arbitrate any and all disputes between them (except for those referenced above)
rather than litigate them before the courts or other bodies, provides the
consideration for this agreement to arbitrate.
15.2 INITIATION OF ARBITRATION Either party may exercise the right to
arbitrate by providing the other party with written notice of any and all claims
forming the basis of such right in sufficient detail to inform the other party
of the substance of such claims. In no event shall the request for arbitration
be made after the date when institution of legal or equitable proceedings based
on such claims would be barred by the applicable statute of limitations. 15.3
Arbitration Procedure The arbitration will be conducted in Seattle, Washington
by a single neutral arbitrator and in accordance with the then current rules for
resolution of employment disputes of the American Arbitration Association
("AAA"). The parties are entitled to representation by an attorney or other
representative of their choosing. The arbitrator shall have the power to enter
any award that could be entered by a judge of the trial court of the State of
Washington, and only such power, and shall follow the law. The parties agree to
abide by and perform any award rendered by the arbitrator. The arbitrator shall
issue the award in writing and therein state the essential findings and
conclusions on which the award is based. Judgment on the award may be entered in
any court having jurisdiction thereof.
15.4 COSTS OF ARBITRATION The Company shall bear the costs of the
arbitration filing and hearing fees and the cost of the arbitrator.
16. GENERAL PROVISIONS
16.1 SUCCESSORS AND ASSIGNS The rights and obligations of the Company under
this Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of the Company. Executive shall not be entitled to assign
any of Executive's rights or obligations under this Agreement.
16.2 WAIVER Either party's failure to enforce any provision of this
Agreement shall not in any way be construed as a waiver of any such provision,
or prevent that party thereafter from enforcing each and every other provision
of this Agreement.
16.3 ATTORNEYS' FEES Each side will bear its own attorneys' fees in any
dispute unless a statutory section at issue, if any, authorizes the award of
attorneys' fees to the prevailing party.
16.4 SEVERABILITY In the event any provision of this Agreement is found to
be unenforceable by an arbitrator or court of competent jurisdiction, such
provision shall be deemed modified to the extent necessary to allow
enforceability of the provision as so limited, it being intended that the
parties shall receive the benefit contemplated herein to the fullest extent
permitted by law. If a deemed modification is not satisfactory in the judgment
of such arbitrator or court, the unenforceable provision shall be deemed
deleted, and the validity and enforceability of the remaining provisions shall
not be affected thereby.
16.5 INTERPRETATION; CONSTRUCTION The headings set forth in this Agreement
are for convenience only and shall not be used in interpreting this Agreement.
This Agreement has been drafted by legal counsel representing the Company, but
Executive has participated in the negotiation of its terms. Furthermore,
Executive acknowledges that Executive has had an opportunity to review and
revise the Agreement and have it reviewed by legal counsel, if desired, and,
therefore, the normal rule of construction to the effect that any ambiguities
are to be resolved against the drafting party shall not be employed in the
interpretation of this Agreement.
16.6 GOVERNING LAW This Agreement will be governed by and construed in
accordance with the laws of the United States and the State of Washington.
Subject to Section 15, each party consents to the jurisdiction and venue of the
state or federal courts in King County, Washington, if applicable, in any
action, suit, or proceeding arising out of or relating to this Agreement.
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16.7 NOTICES Any notice required or permitted by this Agreement shall be in
writing and shall be delivered as follows with notice deemed given as indicated:
(a) by personal delivery when delivered personally; (b) by overnight courier
upon written verification of receipt; (c) by telecopy or facsimile transmission
upon acknowledgment of receipt of electronic transmission; or (d) by certified
or registered mail, return receipt requested, upon verification of receipt.
Notice shall be sent to the addresses set forth below, or such other address as
either party may specify in writing:
If to the Company: 00 Xxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy to: Xxxxxxxxx Traurig, LLP
MetLife Building
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
If to Executive: Xxxx Xxxxxxxx
c/o DLA Xxxxx Xxxxxxx Xxxx Xxxx US LLP
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
16.8 SURVIVAL Sections 8 ("No Conflict of Interest"), 11 ("Confidential
Information"), 13 ("Non-Solicitation"), 14 ("Injunctive Relief"), 15 ("Agreement
to Arbitrate"), 16 ("General Provisions") and 18 ("Entire Agreement") of this
Agreement shall survive Executive's employment by Company.
17. TERMINATION OF AGREEMENT This Agreement shall supersede and therefore force
the immediate termination in its entirety of the Agreement entitled "Protocall
Technologies Incorporated Corporate Director and Technical Advisory Agreement",
dated March 28, 2005.
18. ENTIRE AGREEMENT This Agreement, including the employee innovations and
proprietary rights assignment agreement signed by Executive incorporated herein
by reference, constitutes the entire agreement between the parties relating to
this subject matter and supersedes all prior or simultaneous representations,
discussions, negotiations, and agreements, whether written or oral. This
Agreement may be amended or modified only with the written consent of Executive
and the Board of Directors of Company. No oral waiver, amendment or modification
will be effective under any circumstances whatsoever.
- 9 -
THE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY
UNDERSTAND EACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THE PARTIES
HAVE EXECUTED THIS AGREEMENT ON THE DATES SHOWN BELOW.
Dated: July 15, 2005 /s/ Xxxxxx X. Xxxxxxxx
------------------------ ---------------------------------
Xxxxxx X. Xxxxxxxx
Chief Operating Officer
Protocall Technologies Incorporated
Dated: July 15, 2005 By: /s/ Xxxx Xxxxxxxx
------------------------ ------------------------------------
Xxxx Xxxxxxxx
