Exhibit 10.3
EMPLOYMENT AGREEMENT
BY AND BETWEEN
TOUCH 1 COMMUNICATIONS, INC
AND
________________________
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
EFFECTIVE as of April 10, 2000, by and between TOUCH 1 COMMUNICATIONS, INC. [as
to ▇▇▇▇▇▇▇, direcTEL, Inc.], an Alabama corporation (the "Company"), and
____________________ ("Employee").
1. Employment and Title. The Company hereby employs Employee, and Employee
hereby accepts such employment, as __________________ of the Company, as an
employee and not as an independent contractor, all upon the terms and conditions
set forth herein.
2. Services. During the term of his or her employment hereunder, Employee
will have the duties and responsibilities assigned to him or her by the
Company's Chief Executive Officer or the Company's Board of Directors. Employee
agrees to devote his or her best efforts and all of his or her full business
time, energies and abilities, diligently and in good faith, to perform his or
her duties and his or her responsibilities hereunder for the exclusive benefit
of the Company, but this shall not be construed as preventing Employee from
investing his or her assets in such form or manner as will not require any
services on the part of Employee in the operation or the affairs of the
companies or ventures in which such investments are made.
3. Location. The Employee's principal place of employment shall be in Atmore,
Alabama [as to ▇▇▇▇▇▇▇, Minot, ND]. The Company reserves the right to change
Employee's principal place of employment in its sole discretion.
4. Term. The initial term of Employee's employment hereunder and of this
Agreement shall commence on the date hereof and continue for a period of three
years, unless earlier terminated pursuant to the terms of this Agreement.
Employee's employment hereunder shall continue, and this Agreement shall
automatically renew for additional one-year terms unless either party delivers
written notice of non-renewal at least 90 days before expiration of the initial
term or any renewal term hereof. The initial term and any renewal term shall
hereinafter collectively be referred to as the "Term."
5. Base Salary. As compensation for the services to be rendered by Employee
hereunder, the Company shall pay Employee, during the Term, an annual base
salary of not less than $______________, which base salary shall accrue monthly
(prorated for periods less than a month) and shall be paid in accordance with
the Company's standard payroll practices.
6. Bonus Compensation. Bonus compensation may be awarded to Employee in the
sole discretion of the Company's Board of Directors.
7. Benefits. During the Term, Employee shall be entitled to (a) comprehensive
medical and dental insurance paid fully by the Company, upon the terms and
conditions of such benefits generally applicable to all of the Company's
employees; and (b) three weeks (or such greater period to which Employee maybe
entitled under the Company's policies as then in effect) paid vacation per year.
8. Termination by the Company. The Company may terminate Employee's employment
under this Agreement for any reason 30 days after delivering written notice of
termination to the Employee. The Company may terminate Employee's employment
under this Agreement anytime with or without notice for Good Cause, as defined
herein. For purposes of this Agreement, "Good Cause" will include, without
limitation (i) any fraud, dishonesty, misappropriation or similar act against
the Company or others by Employee; (ii) any material default by Employee in the
performance of his or her obligations, services or duties hereunder, which
default may include, without limitation, Employee's willfully disregarding the
written or oral instructions of the Chief Executive Officer of the Company or
the Company's Board of Directors concerning the conduct of his or her duties
hereunder, Employee's conduct which is materially inconsistent with the
published policies of the Company, as promulgated from time to time and that are
generally applicable to all employees, or Employee's breach of any other
material provision of this Agreement; (iii) the death or permanent disability of
Employee; (iv) any public or private act by Employee that the Company's Board of
Directors finds, in good faith, to be materially inimical to the best interests
of the Company or to have subjected the Company, or its products and services,
to embarrassment, adverse publicity or significant liability; and (v) the
commission by Employee of any negligent act or willful misconduct in the
performance of his or her duties hereunder.
9. Termination by the Employee. Employee may terminate his or her employment
under this Agreement 30 days after giving written notice thereof to the Company.
10. Amounts Payable to Employee Upon Termination. If the Company terminates
Employee's employment (including by giving notice of non-renewal pursuant to
Section 4) without Good Cause, then (1) Employee will be entitled to all accrued
but unpaid compensation (including base salary, bonus and other compensation)
and payment for any accrued but unused vacation to which Employee is entitled,
plus an additional four weeks' base salary, and (2) the noncompetition provision
of Section 13 shall no longer apply to Employee. If Employee's employment is
terminated by the Company for Good Cause, or Employee terminates his employment
(including by giving notice of non-renewal pursuant to Section 4), Employee will
be entitled to all accrued but unpaid compensation (including base salary, bonus
and other compensation) and payment for any accrued but unused vacation to which
Employee is entitled..
11. Trade Secrets; Property of the Company; Confidentiality. All non-public
information, data and knowledge used in the Company's business that provides
advantage to the Company over others not having such information, data and
knowledge, including, without limitation, development ideas, acquisition
strategies and plans, financial information, records, "know-how," methods of
doing business, customer, supplier and distributor lists and information,
employee information, and software code, are, and Employee acknowledges that
they are, trade secrets having significant value to the Company and are the
Company's exclusive property (the "Trade
Secrets"). Further, all video and sound recordings, scripts, software,
discoveries, inventions, creations, improvements and designs associated with the
Company's business conceived, created, authored, produced or found by Employee
while employed by the Company, whether alone or with others, whether during or
after regular work hours, are and will be the Company's exclusive property (the
"Company Property"). Employee hereby assigns to the Company all copyrights,
trademarks and other rights of authorship or ownership he or she may have with
respect to the Company Property. Moreover, at the Company's request and without
additional consideration, Employee hereby agrees to execute and deliver any
documents or instruments that the Company may require in order to effectively
convey and transfer good title and right to, and put the Company in possession
of, the Company Property. Employee agrees that, during the Term and at any time
thereafter, he or she will not communicate, disclose or divulge, use, or permit
the use or disclosure of the Trade Secrets or the Company Property to the
Company's detriment. Furthermore, Employee will notify the Company immediately
if Employee is asked by anyone to disclose the Trade Secrets or the Company
Property. Employee shall, upon the termination of his or her employment, deliver
to the Company any and all records, books, documents or any other materials
whatsoever (including all copies thereof) containing the Trade Secrets and the
Company Property , which shall be and remain the sole and exclusive property of
the Company. The misappropriation of a trade secret is a criminal offense under
state and federal laws.
12. No Removal of Information. Employee will not physically, electronically,
telephonically or otherwise remove from the Company's premises any files,
records, documents, drawings, computer software or data, or similar items
relating to its business, whether or not prepared by Employee, without the
Company's written consent.
13. Non-Competition. Employee agrees that during the Term and for a period of
one year thereafter, Employee will not, directly, indirectly, or as an agent on
behalf of or in conjunction with any person, firm, partnership, corporation or
other entity, own, manage, control, join, or participate in the ownership,
management, operation, or control of, or be financially interested in or advise,
lend money to, or be employed by or provide consulting services to, or be
connected in any manner with any business in competition with that of the
Company located within the United Sates of America; provided that the foregoing
restriction regarding financial interest shall not apply to ownership of less
than 5% of the common equity of any entity.
14. Information and Software of Others. Employee will not use any confidential
or proprietary data, information or documentation or trade secrets of any former
employer or use or allow the use of any illegally obtained trade secrets in the
conduct of his or her duties hereunder; nor will Employee utilize or allow the
utilization of computer software owned by another without license or permission
of the owner.
15. Non-Interference. Employee agrees that during the term of his or her
employment hereunder and for a period of 2 years thereafter, Employee will not
directly, indirectly, or as an agent on behalf of or in conjunction with any
person, firm, partnership, corporation or other entity, hire any employee of the
Company whose employment was not already terminated or cause anyone else to do
so (provided that general advertisements and executive recruiting searches shall
not in any event violate this Section 15) or induce any vendor, supplier, client
or customer of the Company to terminate such relationship or refuse to do
business with the Company.
16. Equitable Remedies. Employee and the Company agree that the services to be
rendered by Employee pursuant to this Agreement, and the rights and interests
granted and the obligations to be performed by Employee to the Company pursuant
to this Agreement, are of a special, unique, extraordinary and intellectual
character, which gives them a peculiar value, the loss of which cannot be
reasonably or adequately compensated in damages in any action at law, and that a
breach by Employee of any of the terms of this Agreement will cause the Company
great and irreparable injury and damage. Employee hereby expressly recognizes
and agrees that the Company has the right to seek entry of a temporary
restraining order, preliminary injunction and permanent injunction, and that the
same can and may be issued against Employee, to prevent or address a breach of
Sections 11-15 of this Agreement. The existence of any claim or cause of action
Employee may have against the Company will not at any time constitute a defense
to the request for such relief.
17. Compliance With other Agreements. Employee represents and warrants to the
Company that he or she is free to enter this Agreement and that the execution of
this Agreement and the performance of the obligations under this Agreement will
not, as of the date of this Agreement or with the passage of time, conflict
with, cause a breach of or constitute a default under any agreement to which the
Employee is a party or by which he or she may be bound.
18. Severability. Every provision of this Agreement is intended to be
severable. If any provision or portion of a provision is illegal, invalid or
unenforceable, including as to geographic or temporal scope, then the remainder
of this Agreement will not be affected. Moreover, any provision or portion of a
provision of this Agreement which is determined to be unreasonable, arbitrary or
against public policy, including as to geographic or temporal scope, shall be
modified by a court or arbitrator as appropriate so that it is not unreasonable,
arbitrary or against public policy. This paragraph applies to every other
provision of this Agreement, including but not limited to Sections 13, 15 and 16
hereof.
19. Rights and Remedies Preserved. Nothing in this Agreement shall limit any
right or remedy the Company or Employee may have under this Agreement or
pursuant to law for any breach of this Agreement by the other party. The rights
granted to the parties herein are cumulative, and the election of one shall not
constitute a waiver of such party's right to assert all other legal remedies
available under the circumstances.
20. No Waivers. The failure of either party to enforce any provision of this
Agreement shall not be construed as a waiver of any such provision, nor prevent
such party thereafter from enforcing such provision or any other provision of
this Agreement.
21. Notices. Any notice to be given to the Company and Employer under the
terms of this Agreement may be delivered personally, by fax or other form of
written electronic transmission, or by registered or certified mail, postage
prepared, and shall be addressed as follows:
If to the Company: Touch 1 Communications, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
If to Employee: Employee's address that is currently on file with the
Company
Either party may hereafter notify the other in writing of any change in address.
Any notice shall be deemed duly given (i) when personally delivered, (ii) when
faxed or transmitted by other form of written electronic transmission (upon
confirmation of receipt), or (iii) on the third day after it is mailed by
registered or certified mail, postage prepared, as provided herein.
22. Successors and Assigns. The rights and obligations of the Company under
this Agreement shall inure to the benefit of and be binding upon the successors
and assigns of the Company, including the survivor upon any merger,
consolidation, share exchange or combination of the Company with any other
entity. Employee shall not have the right to assign, delegate or otherwise
transfer any duty or obligation to be performed by him or her hereunder to any
person or entity.
23. Entire Agreement. This Agreement supersedes all prior and all
contemporaneous agreements and understandings between the parties hereto, oral
or written, and may not be modified or terminated orally. Except modifications
of provisions deemed unreasonable, arbitrary or against public policy shall be
modified pursuant to Section 18, no modification, termination or attempted
waiver shall be valid unless in writing, signed by the party against whom such
modification, termination or waiver is sought to be enforced. This Agreement
was the subject of negotiation by the parties hereto and their counsel. The
parties agree that no tribunal or finder of fact should construe this Agreement
more strongly against the drafting party solely on account of being the drafting
party. The parties agree that no prior drafts of this Agreement shall be
admissible as evidence (whether in any arbitration or court of law) in any
proceeding which involves the interpretation of any provisions of this
Agreement. Employee Initial Here:_______
24. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Alabama without reference to
conflicts of law principles.
25. Section Headings. The section headings contained herein are for the
purposes of convenience only and are not intended to define or limit the
contents of said sections.
26. Further Assurances. Each party hereto shall cooperate and shall take such
further action and shall execute and deliver such further documents as may be
reasonably requested by the other party in order to carry out the provisions and
purposes of this Agreement.
27. Construction. Whenever the pronouns "he" or "his" are used herein, they
shall also be deemed to mean "she" or "hers" or "it" or "its" whenever
applicable. Words in the singular shall be read and construed as though in the
plural and words in the plural shall be read and construed
as though in the singular in all cases where they would so apply.
28. Counterparts. This Agreement may be executed in counterparts, all of which
taken together shall be deemed one original.
29. Confidential Arbitration. The parties hereto agree that any dispute
concerning or arising out of the provisions of this Agreement shall be resolved
by confidential arbitration in accordance with the rules of the American
Arbitration Association. Such confidential arbitration shall be held in Mobile,
Alabama, and the decision of the arbitrator(s) shall be conclusive and binding
on the parties and shall be enforceable in any court of competent jurisdiction.
The arbitrator may, in his or her discretion, award attorneys fees and costs to
such party as he or she sees fit in rendering his or her decision.
Notwithstanding the foregoing, if any dispute arises hereunder as to which a
party desires to exercise any equitable rights or remedies under this Agreement,
such party may, in its discretion, in lieu of submitting the matter to
arbitration, bring an action thereon in any court of competent jurisdiction in
Alabama, which court may grant any and all relief available in equity or at law
for any and all claims made by such party based on or arising from the
provisions of this Agreement. In any such action, the prevailing party shall be
entitled to reasonable attorneys' fees and costs as may be awarded by the court.
30. Survival. The obligations set forth in Sections 11, 13 and 15 shall
survive the termination or expiration of this Agreement or the termination of
Employee's employment hereunder either by Employee or the Company.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement EFFECTIVE as of the date first above written.
TOUCH 1 COMMUNICATIONS, INC.,
an Alabama corporation
By:
--------------------------
EMPLOYEE
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