EMPLOYMENT AGREEMENT
Exhibit
10.1
THIS
EMPLOYMENT AGREEMENT (the “Agreement”), made this 1st day
of January, 2007, is entered into by QoVox Corporation, a North Carolina
corporation with its principal place of business at 0000 Xxxxx xx Xxxxx Xxxx,
Xxxxx 000, Xxxxxxx, Xxxxx Xxxxxxxx 00000 (the “Company”), and Xxx Xxxxxxx, an
individual residing in Raleigh, North Carolina (the “Employee”).
The
Company desires to employ the Employee, and the Employee desires to be employed
by the Company on the terms and conditions set forth in this Agreement. In
consideration of the mutual covenants and promises contained in this Agreement,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged by the parties to this Agreement, the parties agree as
follows:
1.
Term of Employment. The Company hereby agrees to employ the Employee, and the
Employee hereby accepts employment with the Company, on an at-will basis, upon
the terms set forth in this Agreement, commencing on January 1, 2007 (the
Commencement Date).
2.
Title; Capacity. The Employee shall serve as Chief Operating Officer (COO) or in
such other position as the Company may determine from time to time. The Employee
shall be based at the Company’s headquarters in Raleigh, North Carolina. The
Employee shall be subject to the supervision of, and shall have such authority
as is delegated to the Employee by the Company President.
The
Employee hereby accepts such employment and agrees to undertake the duties and
responsibilities inherent in the position of Company COO and such other duties
and responsibilities as the Company President shall from time to time assign to
the Employee. The Employee agrees to devote his entire business time, attention
and energies to the business and interests of the Company during the period of
the Employee’s employment with the Company. The Employee agrees to abide by the
rules, regulations, instructions, personnel practices and policies of the
Company and any changes therein which may be adopted from time to time by the
Company.
3. Compensation
and Benefits.
3.1
Salary. The Company shall pay the Employee, in periodic installments in
accordance with the Company’s customary payroll practices, a monthly base salary
of $12,000. Such salary shall be subject to adjustment annually thereafter as
determined by the Company Chief Executive Officer.
3.2
Fringe Benefits. The Employee shall be entitled to participate in all bonuses
and benefit programs that the Company establishes and makes available to its
employees and eligible dependents, if any, to the extent that Employee’s
position, tenure, salary, age, health and other qualifications make him eligible
to participate. The Employee shall be entitled to paid vacation in accordance
with the Company’s standard policy.
3.3
Reimbursement of Expenses. The Company shall reimburse the Employee for all
reasonable documented travel, entertainment and other expenses incurred or paid
by the Employee in connection with, or related to, the performance of his
duties, responsibilities or services under this Agreement, in accordance with
policies and procedures, and subject to limitations, adopted by the Company from
time to time.
3.4
Withholding. All salary, bonus and other compensation payable to the Employee
shall be subject to applicable withholding taxes.
3.5
Stock Option Agreement. The Board of Directors of Datameg has
determined that appropriate steps should be taken to reinforce and encourage the
continued employment, performance and dedication of the Company’s key
personnel. To this end, Datameg has entered into a Stock Option
Agreement with the Employee of even date herewith.
3.6
Health Insurance. The Company shall offer health insurance for
employees and their eligible dependents no later than 90 days after the
Commencement Date. The Employee and his eligible dependents shall be
entitled to participate.
4.
Termination of Employment.
4.1
This Employment Agreement may be terminated at the election of either party, at
any time, upon not less than 30 days prior written notice of termination;
provided, however, that the Company may, at its option, elect to terminate the
Employee upon less than 30 days notice, in which case the Company shall continue
to pay the Employee, in addition to any payments due to the Employee under
Section 5.1, his salary as in effect on the date of termination until the date
which is 30 days after the date notice of termination is given to the
Employee.
5. Effect
of Termination.
5.1
Payments Upon Termination. In the event of Termination pursuant to Section 4.1,
the Company shall pay to the Employee the compensation and benefits otherwise
payable to him under Section 3 through the last day of his employment by the
Company including extensions, if any, pursuant to Section 4.1. The
Employee’s Stock Option Agreement, of even date herewith, defines all effects of
termination applicable to the Stock Option Agreement for this
eventuality.
5.2
Survival. The provisions of Sections 5, 6 and 7 shall survive the termination of
this Agreement.
6. Non-Solicitation.
6.1
Restricted Activities. While the Employee is employed by the Company and for a
period of two years after the termination or cessation of such employment for
any reason, the Employee will not directly or indirectly, either alone or in
association with others (i) solicit, or permit any organization directly or
indirectly controlled by the Employee to solicit, any employee of the Company to
leave the employ of the Company, or (ii) solicit for employment, hire or engage
as an independent contractor, or permit any organization directly or indirectly
controlled by the Employee to solicit for employment, hire or engage as an
independent contractor, any person who was employed by the Company at the time
of the termination or cessation of the Employee=s
employment with the Company; provided, that this clause (ii) shall not apply to
any individual whose employment with the Company has been terminated for a
period of six months or longer.
6.2
Equitable Remedies. The restrictions contained in this Section 6 are necessary
for the protection of the business and goodwill of the Company and are
considered by the Employee to be reasonable for such purpose. The Employee
agrees that any breach of this Section 6 is likely to cause the Company
substantial and irrevocable damage which is difficult to measure. Therefore, in
the event of any such breach or threatened breach, the Employee agrees that the
Company, in addition to such other remedies which may be available, shall have
the right to obtain an injunction from a court restraining such a breach or
threatened breach and the right to specific performance of the provisions of
this Section 6 and the Employee hereby waives the adequacy of a remedy at law as
a defense to such relief.
7. Proprietary
Information and Developments.
7.1
Proprietary Information.
(a)
The Employee agrees that all information, whether or not in writing, of a
private, secret or confidential nature concerning the Company=s
business, business relationships or financial affairs (collectively, AProprietary
Information@)
is and shall be the exclusive property of the Company. By way of illustration,
but not limitation, Proprietary Information may include
inventions,
products, processes, methods, techniques, formulas, compositions, compounds,
projects, developments, plans, research data, clinical data, financial data,
personnel data, computer programs, customer and supplier lists, and contacts at
or knowledge of customers or prospective customers of the Company. The Employee
will not disclose any Proprietary Information to any person or entity other than
employees of the Company or use the same for any purposes (other than in the
performance of his duties as an employee of the Company) without written
approval by an officer of the Company, either during or after his employment
with the Company, unless and until such Proprietary Information has become
public knowledge without fault by the Employee.
(b) The
Employee agrees that all files, letters, memoranda, reports, records, data,
sketches, drawings, laboratory notebooks, program listings, or other written,
photographic, or other tangible material containing Proprietary Information,
whether created by the Employee or others, which shall come into his custody or
possession, shall be and are the exclusive property of the Company to be used by
the Employee only in the performance of his duties for the Company. All such
materials or copies thereof and all tangible property of the Company in the
custody or possession of the Employee shall be delivered to the Company, upon
the earlier of (i) a request by the Company or (ii) termination of his
employment. After such delivery, the Employee shall not retain any such
materials or copies thereof or any such tangible property.
(c) The
Employee agrees that his obligation not to disclose or to use information and
materials of the types set forth in paragraphs (a) and (b) above, and his
obligation to return materials and tangible property, set forth in paragraph (b)
above, also extends to such types of information, materials and tangible
property of customers of the Company or suppliers to the Company or other third
parties who may have disclosed or entrusted the same to the Company or to the
Employee.
7.2 Developments.
(a) The
Employee will make full and prompt disclosure to the Company of all inventions,
improvements, discoveries, methods, developments, software, and works of
authorship, whether patentable or not, which are created, made, conceived or
reduced to practice by him or under his direction or jointly with others during
his employment by the Company, whether or not during normal working hours or on
the premises of the Company (all of which are collectively referred to in this
Agreement as ADevelopments@).
(b) The
Employee agrees to assign and does hereby assign to the Company (or any person
or entity designated by the Company) all his right, title and interest in and to
all Developments and all related patents, patent applications, copyrights and
copyright applications. However, this paragraph (b) shall not apply to
Developments which do not relate to the present or planned business or research
and development of the Company and which are made and conceived by the Employee
not during normal working hours, not on the Company’s premises and not using the
Company’s tools, devices, equipment or Proprietary Information. The Employee
understands that, to the extent this Agreement shall be construed in accordance
with the laws of any state which precludes a requirement in an employee
agreement to assign certain classes of inventions made by an employee, this
paragraph (b) shall be interpreted not to apply to any invention which a court
rules and/or the Company agrees falls within such classes. The Employee also
hereby waives all claims to moral rights in any Developments.
(c) The
Employee agrees to cooperate fully with the Company, both during and after his
employment with the Company, with respect to the procurement, maintenance and
enforcement of copyrights, patents and other intellectual property rights (both
in the United States and foreign countries) relating to Developments. The
Employee shall sign all papers, including, without limitation, copyright
applications, patent applications, declarations, oaths, formal assignments,
assignments of priority rights, and powers of attorney, which the Company may
deem necessary or desirable in order to protect its rights and interests in any
Development. The Employee further agrees that if the Company is unable, after
reasonable effort, to secure the signature of the Employee on any such papers,
any executive officer of the Company shall be entitled to execute any such
papers as the agent and the attorney-in-fact of the Employee, and the Employee
hereby irrevocably designates and appoints each executive officer of the Company
as his agent and attorney-in-fact to execute any such papers on his behalf, and
to take any and all actions as the Company may deem necessary or desirable in
order to protect its rights and interests in any Development, under the
conditions described in this sentence.
7.3 United
States Government Obligations. The Employee acknowledges that the Company from
time to time may have agreements with other parties or with the United States
Government, or agencies thereof, which impose obligations or restrictions on the
Company regarding inventions made during the course of work under such
agreements or regarding the confidential nature of such work. The Employee
agrees to be bound by all such obligations and restrictions which are made known
to the Employee and to take all appropriate action necessary to discharge the
obligations of the Company under such agreements.
7.4 Equitable
Remedies. The restrictions contained in this Section 7 are necessary for the
protection of the business and goodwill of the Company and are considered by the
Employee to be reasonable for such purpose. The Employee agrees that any breach
of this Section 7 is likely to cause the Company substantial and irrevocable
damage which is difficult to measure. Therefore, in the event of any such breach
or threatened breach, the Employee agrees that the Company, in addition to such
other remedies which may be available, shall have the right to obtain an
injunction from a court restraining such a breach or threatened breach and the
right to specific performance of the provisions of this Section 7 and the
Employee hereby waives the adequacy of a remedy at law as a defense to such
relief.
8. Other
Agreements. The Employee represents that his performance of all the terms of
this Agreement and the performance of his duties as an employee of the Company
do not and will not breach any agreement with any prior employer or other party
to which the Employee is a party (including without limitation any nondisclosure
or non-competition agreement). Any agreement to which the Employee is a party
relating to nondisclosure, non-competition or non-solicitation of employees or
customers is listed on Schedule 8 attached hereto.
9. Miscellaneous.
9.1
Notices. Any notices delivered under this Agreement shall be deemed duly
delivered four business days after it is sent by registered or certified mail,
return receipt requested, postage prepaid, or one business day after it is sent
for next-business day delivery via a reputable nationwide overnight courier
service, in each case to the address of the recipient set forth in the
introductory paragraph hereto. Either party may change the address to which
notices are to be delivered by giving notice of such change to the other party
in the manner set forth in this Section 9.1.
9.2
Pronouns. Whenever the context may require, any pronouns used in this Agreement
shall include the corresponding masculine, feminine or neuter forms, and the
singular forms of nouns and pronouns shall include the plural, and vice
versa.
9.3
Entire Agreement. This Agreement constitutes the entire agreement between the
parties and supersedes all prior agreements and understandings, whether written
or oral, relating to the subject matter of this Agreement.
9.4
Amendment. This Agreement may be amended or modified only by a written
instrument executed by both the Company and the Employee.
9.5
Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of North Carolina (without reference to the conflicts
of laws provisions thereof). Any action, suit or other legal proceeding arising
under or relating to any provision of this Agreement shall be commenced only in
a court of the State of North Carolina (or, if appropriate, a federal court
located within the State of North Carolina), and the Company and the Employee
each consents to the jurisdiction of such a court. The Company and the Employee
each hereby irrevocably waive any right to a trial by jury in any action, suit
or other legal proceeding arising under or relating to any provision of this
Agreement.
9.6
Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of both parties and their respective successors and assigns, including
any corporation with which, or into which, the Company may be merged or which
may succeed to the Company’s assets or business, provided, however, that the
obligations of the Employee are personal and shall not be assigned by him.
Notwithstanding the foregoing, if the Company is merged with or into a third
party which is engaged in multiple lines of business, or if a third party
engaged in multiple lines of business succeeds to the Company’s assets or
business, then for purposes of Section 6.1(a), the term Company shall mean and
refer to the business of the Company as it existed immediately prior to such
event and as it subsequently develops and not to the third party’s other
businesses.
9.7
Waivers. No delay or omission by the Company in exercising any right under this
Agreement shall operate as a waiver of that or any other right. A waiver or
consent given by the Company on any one occasion shall be effective only in that
instance and shall not be construed as a bar or waiver of any right on any other
occasion.
9.8
Captions. The captions of the sections of this Agreement are for convenience of
reference only and in no way define, limit or affect the scope or substance of
any section of this Agreement.
9.9
Severability. In case any provision of this Agreement shall be invalid, illegal
or otherwise unenforceable, the validity, legality and enforceability of the
remaining provisions shall in no way be affected or impaired
thereby.
THE
EMPLOYEE ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS
AND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year set forth above.
QOVOX
CORPORATION
By:
/s/ Xxxxx
Xxxxxx
Xxxxx
Xxxxxx
Chief
Executive Officer and Chairman of the Board
EMPLOYEE
/s/
Xxx
Xxxxxxx
Xxx
Xxxxxxx
