Exhibit 10.10
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made, entered into, and
effective as of June 8, 2007 (the "Effective Date"), by and between Seamless
Wi-Fi, Inc., a Nevada corporation ("Company"), and Xxxxxx Xxxx, an individual
("Employee") (individually, a "Party"; collectively, the "Parties").
RECITALS
WHEREAS, Company desires to employ Employee, and Employee desires to be
employed as the Chief Executive Officer of Company; and
WHEREAS, Company desires to have an employment agreement with Employee
as its Chief Executive Officer, subject to the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, the Parties hereto hereby agree as follows:
AGREEMENT
1. TERM OF EMPLOYMENT.
a. SPECIFIED PERIOD. Company hereby employs Employee and Employee
accepts employment with Company for a period of five years beginning on June 8,
2007, and terminating on June 7, 2012.
b. RENEWAL. This Agreement is subject to automatic renewal for
successive one year terms, upon the same terms and conditions as set forth
herein, unless either this Agreement is terminated pursuant to Section 8 hereof
or a Party gives written notice to the other Party of its intent to terminate,
at least 30 days prior to expiration of the then-current term.
c. EMPLOYMENT TERM DEFINED. "Employment Term" refers to the entire
period of employment of Employee by Company, whether for the period provided
above, or whether terminated earlier as hereinafter provided or extended by
automatic renewal as described above.
2. DUTIES AND OBLIGATIONS OF EMPLOYEE. Employee shall serve as Chief Executive
Officer of the Company. Employee shall report to the Board of Directors or any
other individual designated by the Board of Directors of the Company. Employee
shall faithfully and diligently perform all professional duties and acts as may
be requested and required of Employee by Company or its Directors. Employee
shall devote such time and attention to the business of Company as shall be
required to perform the required services and duties. Employee at all times
during the Employment Term shall strictly adhere to and obey all policies, rules
and regulations established from time to time governing the conduct of employees
of Company.
3. EXCLUSIVITY, NON-DISCLOSURE.
a. DEVOTION TO COMPANY BUSINESS. Employee agrees to perform Employee's
services efficiently and to the best of Employee's ability. Employee agrees
throughout the term of this Agreement to devote his time, energy and skill to
the business of the Company and to the promotion of the best interests of the
Company.
b. TRADE SECRETS. Employee agrees that he shall not at any time, either
during or subsequent to his Employment Term, unless expressly consented to in
writing by Company, either directly or indirectly use or disclose to any person
or entity any confidential information of any kind, nature or description
concerning any matters affecting or relating to the business of Company,
including, but not limited to, information concerning the customers of Company,
Company's marketing methods, compensation paid to employees, independent
contractors or suppliers and other terms of their employment or contractual
relationships, financial and business records, know-how, or any other
information concerning the business of Company, its manner of operations, or
other data of any kind, nature or description. Employee agrees that the above
information and items are important, material and confidential trade secrets and
these affect the successful conduct of Company's business and its goodwill.
c. INVENTIONS AND PATENTS. All processes, inventions, patents, computer
software, copyrights, trademarks and other intangible rights (collectively
referred to as "Intellectual Property") that may be conceived or developed by
Employee during the Employment Term, either alone or with others, made or
conceived by him shall remain the sole property of Company.
4. COMPENSATION.
a. SALARY. Subject to the termination of this Agreement as provided
herein, Company shall compensate Employee for his services hereunder at a
monthly salary of $20,000 until June 30, 2007. Thereafter, Company shall
compensate Employee for his services hereunder at a monthly salary of $25,000
for the remainder of the Employment Term. All salary payments hereof shall be
payable in accordance with the Company's practices, less normal payroll
deductions, and prorated for the actual Employment Term.
b. SALARY INCREASES; ADDITIONAL COMPENSATION. In the event that the
Company becomes profitable according to generally accepted accounting principles
("GAAP"), Employee's monthly salary shall be increased to $30,000 for the
remainder of the Employment Term. Such salary increase shall become effective on
the first day of the month following the month in which the Company becomes
profitable according to GAAP.
c. BONUS. Employee shall receive bonuses as may be determined by the
Board of Directors of the Company in its sole discretion.
5. EMPLOYEE INCENTIVES. Employee shall be entitled to receive incentives under
all incentive plans made available by Company or in the future to similarly
situated employees, subject to the terms, conditions and overall administration
of such plans, including but not limited to stock
options, bonuses, profit sharing, and any other incentive plans that the Company
has made available to similarly situated employees.
6. EMPLOYEE BENEFITS.
a. VACATION. Employee shall be entitled, during each employment year,
to four weeks vacation, per annum, non-cumulative. Employee may be absent from
his employment for Vacation only at such times as may be convenient to Company
and Employee.
b. MEDICAL COVERAGE. Company agrees to include Employee in the coverage
of its medical and dental insurance as provided to other employees of the
Company.
c. PLAN PARTICIPATION. Employee shall be entitled to participate in or
to receive benefits under all of Company's employee benefit plans made available
by Company or in the future to similarly situated employees, subject to the
terms, conditions and overall administration of such plans, including but not
limited to 401(k) plans, XXX plans, E.R.I.S.A Plans, any other retirement or
benefit plans that the Company has made available to similarly situated
employees.
7. BUSINESS EXPENSES. Employee will be required to incur travel, meals,
entertainment and other business expenses on behalf of the Company in the
performance of Employee's duties hereunder. Company will reimburse Employee for
all such reasonable business expenses incurred by Employee in connection with
Company's business upon presentation of receipts or other acceptable
documentation of the expenditures. In compensating Employee for expenses, the
ordinary and usual business guidelines and documentation requirements shall be
adhered to by Company and Employee.
8. TERMINATION OF EMPLOYMENT.
a. TERMINATION FOR CAUSE. Company may terminate this Agreement for
cause at any time. For purposes of this Agreement, the term "cause" shall
include, but not be limited to, in the Company's reasonable but sole discretion,
the following: a material breach of or failure to perform any covenant or
obligation in this Agreement, disloyalty, dishonesty, neglect of duties,
unprofessional conduct, acts of moral turpitude, disappearance, felonious
conduct, or fraud. Company may terminate this Agreement for cause by giving
written notice of termination to Employee without prejudice to any other remedy
to which Company may be entitled either at law, in equity, or under this
Agreement. The notice of termination required by this section shall specify the
ground for the termination and shall be supported by a statement of all relevant
facts.
b. TERMINATION UPON DEATH OR DISABILITY.
i. DEATH. This Agreement shall be terminated immediately upon
the death of Employee.
ii. DISABILITY. Company reserves the right to terminate this
Agreement if, due to illness or injury, either physical or mental, Employee is
unable to perform Employee's customary duties as an employee of Company, unless
reasonable accommodation can be made to
allow Employee to continue working, for more than 30 days in the aggregate out
of a period of 12 consecutive months. The disability shall be determined by a
certification from a physician. Such a termination shall be effected by giving
ten days' written notice of termination to Employee. Termination pursuant to
this provision shall not prejudice Employee's rights to receive disability
insurance payments or the continued compensation pursuant to this Agreement.
iii. FOR CAUSE. Termination under this section for either
death or disability shall be considered "for cause" for the purposes of this
Agreement.
c. EFFECT OF MERGER, TRANSFER OF ASSETS, OR DISSOLUTION. Without the
prior written consent of Employee, this Agreement shall not be terminated by any
voluntary or involuntary dissolution of Company resulting from a merger or
consolidation in which Company is not the consolidated or surviving corporation,
or a transfer of all or substantially all of the assets of Company. In the event
of any such merger or consolidation or transfer of assets, Employee's rights,
benefits, and obligations hereunder shall be assigned to the surviving or
resulting corporation or the transferee of Company's assets, unless Employee
agrees otherwise.
d. PAYMENT ON TERMINATION. If Company terminates this Agreement
"without cause," it shall pay "Severance Benefits" to the Employee. Severance
Benefits shall mean, for purposes of this Agreement, a cash payment equal to the
aggregate compensation payable to the Employee during the remaining term of this
Agreement, including all salary, commissions, bonuses and other compensation.
e. TERMINATION BY EMPLOYEE.
i. WITHOUT CAUSE. Employee may terminate this Agreement
without cause upon 30 days' prior written notice to Company.
ii. WITH CAUSE. Employee may terminate this Agreement
immediately with cause, in which event Employee shall receive the Payment on
Termination in accordance with Section 8(d) herein. For the purposes of this
Agreement, "cause" for termination by Employee shall be a breach of any material
covenant or obligation hereunder; or the termination of this Agreement without
the prior written consent of Employee due to the voluntary or involuntary
dissolution of the Company, any merger or consolidation in which the Company is
not the surviving or resulting corporation, or any transfer of all or
subsequently all of the assets of Company.
9. GENERAL PROVISIONS.
a. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the Parties hereto their respective devisees, legatees, heirs,
legal representatives, successors, and permitted assigns. The preceding sentence
shall not affect any restriction on assignment set forth elsewhere in this
Agreement.
b. NOTICES. Any notice, request, instruction, or other document
required by the terms of this Agreement, or deemed by any of the Parties hereto
to be desirable, to be given to any
other party hereto shall be in writing and shall be given by personal delivery,
overnight delivery, mailed by registered or certified mail, postage prepaid,
with return receipt requested, or sent by facsimile transmission to the
addresses of the Parties as follows:
TO COMPANY: Seamless Wi-Fi, Inc.,
----------- 000 X. Xxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx
Attn: Xxxxxx Xxxx, Chief Executive Officer
TO EMPLOYEE: Xxxxxx Xxxx
------------ 00000 Xxxxxxxxx Xxxx, Xxxxx X
Xxxxx Xx Xxxxxxx, XX 00000
Fax: ____________________
With a copy to: Xxxxxx & Xxx
00000 Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxx Xxxxxx, Esq.
The persons and addresses set forth above may be changed from time to time by a
notice sent as aforesaid. If notice is given by personal delivery or overnight
delivery in accordance with the provisions of this Section, such notice shall be
conclusively deemed given at the time of such delivery provided a receipt is
obtained from the recipient. If notice is given by mail in accordance with the
provisions of this Section, such notice shall be conclusively deemed given upon
receipt and delivery or refusal. If notice is given by facsimile transmission in
accordance with the provisions of this Section, such notice shall be
conclusively deemed given at the time of delivery if during business hours and
if not during business hours, at the next business day after delivery, provided
a confirmation is obtained by the sender.
c. SUMS DUE DECEASED EMPLOYEE. If Employee dies prior to the expiration
of the Employment Term, any sums that may be due him from Company under this
Agreement as of the date of death shall be paid to Employee's executors,
administrators, heirs, personal representatives, successors, and assigns.
d. ASSIGNMENT. Subject to all other provisions of this Agreement, any
attempt to assign or transfer this Agreement or any of the rights conferred
hereby, by judicial process or otherwise, to any person, firm, Company, or
corporation without the prior written consent of the other Party, shall be
invalid, and may, at the option of such other Party, result in an incurable
event of default resulting in termination of this Agreement and all rights
hereby conferred.
e. CHOICE OF LAW. This Agreement and the rights of the parties
hereunder shall be governed by and construed in accordance with the laws of the
State of California including all matters of construction, validity,
performance, and enforcement and without giving effect to the principles of
conflict of laws.
f. JURISDICTION. The parties submit to the jurisdiction of the Courts
of the County of Orange, State of California or a Federal Court empaneled in the
State of California for the resolution of all legal disputes arising under the
terms of this Agreement.
g. INDEMNIFICATION. Company shall indemnify, defend and hold Employee
harmless, to the fullest extent permitted by law, for all claims, demands,
losses, costs, expenses, obligations, liabilities, damages, recoveries and
deficiencies, including interest, penalties and reasonable attorney's fees that
Employee shall incur or suffer that arise from, result from or relate to the
discharge of Employee's duties under this Agreement. Company shall maintain
adequate insurance for this purpose or shall advance Employee any expenses
incurred in defending any such proceeding or claim to the maximum extent
permitted by law.
h. ENTIRE AGREEMENT. Except as provided herein, this Agreement,
including exhibits, contains the entire agreement of the Parties, and supersedes
all existing negotiations, representations, or agreements and all other oral,
written, or other communications between them concerning the subject matter of
this Agreement. There are no representations, agreements, arrangements, or
understandings, oral or written, between and among the Parties hereto relating
to the subject matter of this Agreement that are not fully expressed herein.
i. SEVERABILITY. If any provision hereof is held to be illegal, invalid
or unenforceable under present or future laws effective during the term hereof,
such provision shall be fully severable. This Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part hereof, and the remaining provisions hereof shall remain in
full force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or by its severance wherefrom. Furthermore, in lieu of
such illegal, invalid or unenforceable provision there shall be added
automatically by the Company as a part hereof a provision as similar in terms to
such illegal, invalid or unenforceable provision as may be possible and legal,
valid and enforceable.
j. CAPTIONS. The captions in this Agreement are inserted only as a
matter of convenience and for reference and shall not be deemed to define,
limit, enlarge, or describe the scope of this Agreement or the relationship of
the Parties, and shall not affect this Agreement or the construction of any
provisions herein.
k. MODIFICATION. No change, modification, addition, or amendment to
this Agreement shall be valid unless in writing and signed by all Parties
hereto.
l. ATTORNEYS' FEES. In the event any Party hereto shall commence legal
proceedings against the other to enforce the terms hereof, or to declare rights
hereunder, as the result of a breach of any covenant or condition of this
Agreement, the prevailing Party in any such proceeding shall be entitled to
recover from the losing Party its costs of suit, including reasonable attorneys'
fees, as may be fixed by the court.
m. TAXES. Any income taxes required to be paid in connection with the
payments due hereunder, shall be borne by the Party required to make such
payment. Any withholding taxes in the nature of a tax on income shall be
deducted from payments due, and the Party
required to withhold such tax shall furnish to the Party receiving such payment
all documentation necessary to prove the proper amount to withhold of such taxes
and to prove payment to the tax authority of such required withholding.
n. NOT FOR THE BENEFIT OF CREDITORS OR THIRD PARTIES. The provisions of
this Agreement are intended only for the regulation of relations among the
Parties. This Agreement is not intended for the benefit of creditors of the
Parties or other third Parties and no rights are granted to creditors of the
Parties or other third Parties under this Agreement. Under no circumstances
shall any third party, who is a minor, be deemed to have accepted, adopted, or
acted in reliance upon this Agreement.
o. COUNTERPARTS. This Agreement may be executed in several counterparts
and it shall not be necessary for each Party to execute each of such
counterparts, but when all of the parties have executed and delivered one of
such counterparts, the counterparts, when taken together, shall be deemed to
constitute one and the same instrument, enforceable against each Party in
accordance with its terms.
p. FACSIMILE SIGNATURES. The parties hereto agree that this Agreement
may be executed by facsimile signatures and such signatures shall be deemed
originals. The parties further agree that within ten days following the
execution of this Agreement, they shall exchange original signature pages.
q. CONFLICT WAIVER. The Parties hereby agree and acknowledge that the
law firm of Xxxxxx & Xxx ("the Firm"), which represents the Company, has drafted
this Agreement. The Parties hereto further acknowledge that they have been
informed of the inherent conflict of interest associated with the drafting of
this Agreement by the Firm and waive any action they may have against the Firm
regarding such conflict. The Parties have been given the opportunity to consult
with counsel of their choice regarding their rights under this Agreement.
(SIGNATURE PAGE IMMEDIATELY FOLLOWS)
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
duly executed as of the Effective Date.
COMPANY:
SEAMLESS WI-FI, INC.,
a Nevada corporation
/s/ Xxxxxx Xxxx
-------------------------------------------
BY: Xxxxxx Xxxx
ITS: Chief Executive Officer
EMPLOYEE:
XXXXXX XXXX
/s/ Xxxxxx Xxxx
-------------------------------------------
Xxxxxx Xxxx
CONFIRMED AUTHORIZED BY THE BOARD OF DIRECTORS:
SEAMLESS WI-FI, INC.,
a Nevada corporation
/s/ Xxx Xxxx
-------------------------
BY: Xxx Xxxx
ITS: Secretary
