Exhibit 10.3
DATA CALL TECHNOLOGIES
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is made between Data
Call Technologies, a Nevada corporation (the "Company"), and Xxxxx Xxxxxx
("Executive") (collectively sometimes referred to as the "Parties" and
individually sometimes referred to as "Each Party"). Unless otherwise indicated,
all references to Sections are to Sections in this Agreement. This Agreement is
effective as of the "Effective Date" set forth in Section 14 below.
W I T N E S S E T H:
WHEREAS, the Company desires to obtain the services of Executive, and
Executive desires to be employed by the Company upon the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises, the agreements herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto agree as of the date hereof as follows:
1. Employment. The Company hereby agrees to employ Executive, and Executive
hereby agrees to serve the Company, as Chief Financial Officer ("Employment")
for a period of three (3) years beginning on the Effective Date. This Agreement
is renewable for successive one-year terms upon the mutual acceptance of both
parties.
2. Scope of Employment.
(a) During the Employment, Executive will serve as Chief
Financial Officer. In that connection, Executive will (i) devote his
full-time, attention, and energies to the business of the Company and
will diligently and to the best of his ability perform all duties
incident to his employment hereunder; (ii) use his best efforts to
promote the interests and goodwill of the Company; and (iii) perform
such other duties commensurate with his office as the Board of
Directors of the Company may from time-to-time assign to him.
(b) Section 2(a) shall not be construed as preventing Executive
from (i) serving on corporate, civic or charitable boards or
committees, or (ii) making investments in other businesses or
enterprises; provided that in no event shall any such service,
business activity or investment require the provision of substantial
services by Executive to the operations or the affairs of such
businesses or enterprises such that the provision thereof would
interfere in any respect with the performance of Executive's duties
hereunder; and subject to Section 6.
3. Compensation and Benefits During Employment. During the Employment, the
Company shall provide compensation to Executive as follows.
(a) The Company shall pay Executive base compensation of $75,000
per year.
(b) The Company shall reimburse Executive for business expenses
incurred by Executive in connection with the Employment in accordance
with the Company's then-current policies and shall include
reimbursement for that portion of Executive's cell phone expenses
which correspond to his Employment. Pre-approval in writing will be
required for any amounts in excess of $500.00.
(c) Executive will be entitled to health insurance and life
insurance when and if a policy is adopted by the Company.
(d) Executive will be entitled to participate in a 401k
retirement plan when and if a policy is enacted by the Company.
(e) Executive will be entitled to Two (2) weeks of paid time off
("PTO") per year. PTO days shall begin on the 1st of January for each
successive year. Unused PTO days shall roll-over into the next year.
Other than the use of PTO days for illness or personal emergencies,
PTO days must be pre-approved by the Company. All unused PTO shall
expire on the third anniversary of the date first granted hereunder.
(f) Executive will be entitled to participate in any incentive
program or discretionary bonus program of the Company which may be
implemented in the future by the Board of Directors.
(g) Executive will be entitled to participate in any stock option
plan of the Company which may be approved in the future by the Board
of Directors.
(h) Executive shall be entitled to up to $500 per month to be
used by Executive for car payments on a car to be used by Executive in
connection with his employment hereunder.
Any act, or failure to act, based upon authority given pursuant to a
resolution duly adopted by the Board or based upon the advice of counsel for the
Company shall be conclusively presumed to be done, or omitted to be done, by
Executive in good faith and in the best interests of the Company and thus shall
not be deemed grounds for Termination for Cause.
4. Confidential Information.
(a) Executive acknowledges that the law provides the Company with
protection for its trade secrets and confidential information.
Executive will not disclose, directly or indirectly, any of the
Company's confidential business information or confidential technical
information to anyone without authorization from the Company's
management. Executive will not use any of the Company's confidential
business information or confidential technical information in any way,
either during or after the Employment with the Company, except as
required in the course of the Employment.
(b) Executive will strictly adhere to any obligations that may be
owed to former employers insofar as Executive's use or disclosure of
their confidential information is concerned.
(c) Information will not be deemed part of the confidential
information restricted by this Section 4 if Executive can show that:
(i) the information was in Executive's possession or within
Executive's knowledge before the Company disclosed it to Executive;
(ii) the information was or became generally known to those who could
take economic advantage of it; (iii) Executive obtained the
information from a party having the right to disclose it to Executive
without violation of any obligation to the Company, or (iv) Executive
is required to disclose the information pursuant to legal process
(e.g., a subpoena), provided that Executive notifies the Company
immediately upon receiving or becoming aware of the legal process in
question. No combination of information will be deemed to be within
any of the four exceptions in the previous sentence, however, whether
or not the component parts of the combination are within one or more
exceptions, unless the combination itself and its economic value and
principles of operation are themselves within such an exception or
exceptions.
(d) All originals and all copies of any drawings, blueprints,
manuals, reports, computer programs or data, notebooks, notes,
photographs, and all other recorded, written, or printed matter
relating to research, manufacturing operations, or business of the
Company made or received by Executive during the Employment are the
property of the Company. Upon Termination of the Employment, whether
or not for Cause, Executive will immediately deliver to the Company
all property of the Company which may still be in Executive's
possession. Executive will not remove or assist in removing such
property from the Company's premises under any circumstances, either
during the Employment or after Termination thereof, except as
authorized by the Company's management.
(e) For a period of one (1) year after the date of Termination of
the Employment, Executive will not, either directly or indirectly,
hire or employ or offer or participate in offering employment to any
person who at the time of such Termination or at any time during such
one year period following the time of such Termination was an employee
of the Company without the prior written consent of the Company.
5. Ownership of Intellectual Property.
(a) The Company will be the sole owner of any and all of
Executive's Inventions that are related to the Company's business, as
defined in more detail below.
(b) For purposes of this Agreement, "Inventions" means all
inventions, discoveries, and improvements (including, without
limitation, any information relating to manufacturing techniques,
processes, formulas, developments or experimental work, work in
progress, or business trade secrets), along with any and all other
work product relating thereto.
(c) An Invention is "related to the Company's business"
("Company-Related Invention") if it is made, conceived, or reduced to
practice by Executive (in whole or in part, either alone or jointly
with others, whether or not during regular working hours), whether or
not potentially patentable or copyrightable in the U.S. or elsewhere,
and it either: (i) involves equipment, supplies, facilities, or trade
secret information of the Company; (ii) involves the time for which
Executive was or is to be compensated by the Company; (iii) relates to
the business of the Company or to its actual or demonstrably
anticipated research and development; or (iv) results, in whole or in
part, from work performed by Executive for the Company.
(d) Executive will promptly disclose to the Company, or its
nominee(s), without additional compensation, all Company-Related
Inventions.
(e) Executive will assist the Company, at the Company's expense,
in protecting any intellectual property rights that may be available
anywhere in the world for such Company-Related Inventions, including
signing U.S. or foreign patent applications, oaths or declarations
relating to such patent applications, and similar documents.
(f) To the extent that any Company-Related Invention is eligible
under applicable law to be deemed a "work made for hire," or otherwise
to be owned automatically by the Company, it will be deemed as such,
without additional compensation to Executive. In some jurisdictions,
Executive may have a right, title, or interest ("Right," including
without limitation all right, title, and interest arising under patent
law, copyright law, trade-secret law, or otherwise, anywhere in the
world, including the right to xxx for present or past infringement) in
certain Company-Related Inventions that cannot be automatically owned
by the Company. In that case, if applicable law permits Executive to
assign Executive's Right(s) in future Company-Related Inventions at
this time, then Executive hereby assigns any and all such Right(s) to
the Company, without additional compensation to Executive; if not,
then Executive agrees to assign any and all such Right(s) in any such
future Company-Related Inventions to the Company or its nominee(s)
upon request, without additional compensation to Executive.
6. Non-competition. As a condition to, and in consideration of, the
Company's entering into this Agreement, and giving Executive access to certain
confidential and proprietary information, which Executive recognizes is valuable
to the Company and, therefore, its protection and maintenance constitutes a
legitimate interest to be protected by the provisions of this Section 6 as
applied to Executive and other employees similarly situated to Executive, and
for ten dollars ($10) and other good and valuable consideration, the receipt and
sufficiency of which Executive hereby acknowledges, Executive acknowledges and
hereby agrees as follows:
(a) that Executive is and will be engaged in the business of the
Company;
(b) that Executive has occupied a position of trust and
confidence with the Company prior to the Effective Date, and that
during such period and the period of Executive's Employment under this
Agreement, Executive has, and will, become familiar with the Company's
trade secrets and with other proprietary and confidential information
concerning the Company;
(c) that the obligations of this Agreement are directly related
to the Employment and are necessary to protect the Company's
legitimate business interests; and that the Company's need for the
covenants set forth in this Agreement is based on the following: (i)
the substantial time, money and effort expended and to be expended by
the Company in developing technical designs, computer program source
codes, marketing plans and similar confidential information; (ii) the
fact that Executive will be personally entrusted with the Company's
confidential and proprietary information; (iii) the fact that, after
having access to the Company's technology and other confidential
information, Executive could become a competitor of the Company; and
(iv) the highly competitive nature of the Company's industry,
including the premium that competitors of the Company place on
acquiring proprietary and competitive information; and
(d) that for a period commencing on the Effective Date and ending
nine (9) months following Termination as provided in Section 11,
Executive will not, directly or indirectly, serve as employee, agent,
consultant, stockholder, director, co-partner or in any other
individual or representative capacity, own, operate, manage, control,
engage in, invest in or participate in any manner in, act as
consultant or advisor to, render services for (alone or in association
with any person, firm, corporation or entity), or otherwise assist any
person or entity that directly or indirectly engages or proposes to
engage in (i) the same, or a substantially similar, type of business
as that in which the Company engages; or (ii) the business of
distribution or sale of (A) products and services distributed, sold or
license by the Company at the time of termination; or (B) products and
services proposed at the time of Termination to be distributed, sold
or licensed by the Company, anywhere in Xxxxxx County, Xxxxxxxxxx
County, Xxxxxx County, Liberty County, Xxxxxxxx County, Galveston
County, Brazoria County or Fort Bend County, Texas (the "Territory");
provided, however
(e) that nothing contained herein shall be construed to prevent
Executive from investing in the stock or securities of any competing
corporation listed on any recognized national securities exchange or
traded in the over the counter market in the United States, but only
if (i) such investment is of a totally passive nature and does not
involve Executive devoting time to the management or operations of
such corporation and Executive is not otherwise involved in the
business of such corporation; and if (ii) Executive and his associates
(as such term is defined in Regulation 14(A) promulgated under the
Securities Exchange Act of 1934, as in effect on the Effective Date),
collectively, do not own, directly or indirectly, more than an
aggregate of two percent (2%) of the outstanding stock or securities
of such corporation.
7. Legal Fees and Expenses. In the event of a lawsuit, arbitration, or
other dispute-resolution proceeding between the Company and Executive arising
out of or relating to this Agreement, the prevailing party, in the proceeding as
a whole and/or in any interim or ancillary proceedings (e.g., opposed motions,
including without limitation motions for preliminary or temporary injunctive
relief) will be entitled to recover its reasonable attorneys' fees and expenses
unless the court or other forum determines that such a recovery would not serve
the interests of justice.
8. Successors.
(a) This Agreement shall inure to the benefit of and be binding
upon (i) the Company and its successors and assigns; (ii) Executive
and Executive's heirs and legal representatives, except that
Executive's duties and responsibilities under this Agreement are of a
personal nature and will not be assignable or delegable in whole or in
part; and (iii) Executive Parties as provided in Section 10.
(b) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation, Acquisition or
otherwise) to all or substantially all of the business and/or assets
of the Company to assume expressly and agree to perform this Agreement
in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. As used
in this Agreement, "the Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets
as aforesaid which assumes and agrees to perform this Agreement by
operation of law, or otherwise.
9. Arbitration.
(a) Except as set forth in paragraph (b) of this Section 9 or to
the extent prohibited by applicable law, any dispute, controversy or
claim arising out of or relating to this Agreement will be submitted
to binding arbitration before a single arbitrator in accordance with
the National Rules for the Resolution of Employment Disputes of the
American Arbitration Association in effect on the date of the demand
for arbitration. The arbitration shall take place before a single
arbitrator, who will preferably but not necessarily be a lawyer but
who shall have at least five years' experience in working in or with
Internet companies. Unless otherwise agreed by the parties, the
arbitration shall take place in the city in which Executive's
principal office space is located at the time of the dispute or was
located at the time of Termination of the Employment (if applicable).
The arbitrator is hereby directed to take all reasonable measures not
inconsistent with the interests of justice to expedite, and minimize
the cost of, the arbitration proceedings.
(b) To protect inventions, trade secrets, or other confidential
information of Section 4, and/or to enforce the non-competition
provisions of Section 6, the Company may seek temporary, preliminary,
and/or permanent injunctive relief in a court of competent
jurisdiction, in each case, without waiving its right to arbitration.
(c) At the request of either party, the arbitrator may take any
interim measures s/she deems necessary with respect to the subject
matter of the dispute, including measures for the preservation of
confidentiality set forth in this Agreement.
(d) Judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction.
10. Indemnification.
(a) The Company agrees to indemnify and hold harmless Executive,
his nominees and/or assigns (a reference in this Section 10 to
Executive also includes a reference to Executive's nominees and/or
assigns) against any and all losses, claims, damages, obligations,
penalties, judgments, awards, liabilities, costs, expenses and
disbursements (incurred in any and all actions, suits, proceedings and
investigations in respect thereof and any and all legal and other
costs, expenses and disbursements in giving testimony or furnishing
documents in response to a subpoena or otherwise), including without
limitation, the costs, expenses and disbursements, as and when
incurred, of investigating, preparing or defending any such action,
suit, proceeding or investigation that is in any way related to
the Executive's employment with the Company (whether or not in
connection with any action in which the Executive is a party). Such
indemnification does not apply to acts performed by Executive, which
are criminal in nature or a violation of law. The Company also agrees
that Executive shall not have any liability (whether direct or
indirect, in contract or tort, or otherwise) to the Company, for, or
in connection with, the engagement of the Executive under the
Agreement, except to the extent that any such liability resulted
primarily and directly from Executive's gross negligence and willful
misconduct.
(b) These indemnification provisions shall be in addition to any
liability which the Company may otherwise have to Executive or the
persons indemnified below in this sentence and shall extend to the
following: the Executive, his affiliated entities, partners,
employees, legal counsel, agents, and controlling persons (within the
meaning of the federal securities laws), and the officers, directors,
employees, legal counsel, agents, and controlling persons of any of
them (collectively, the "the Executive Parties").
(c) If any action, suit, proceeding or investigation is
commenced, as to which any of the Executive parties propose
indemnification under the Agreement, they shall notify the Company
with reasonable promptness; provided however, that any failure to so
notify the Company shall not relieve the Company from its obligations
hereunder. The Executive Parties shall have the right to retain
counsel of their own choice (which shall be reasonably acceptable by
the Company) to represent them, and the Company shall pay fees,
expenses and disbursements of such counsel; and such counsel shall, to
the extent consistent with its professional responsibilities,
cooperate with the Company and any counsel designated by the Company.
The Company shall be liable for any settlement of any claim against
the Executive Parties made with the Company's written consent, which
consent shall not be unreasonably withheld. The Company shall not,
without the prior written consent of the party seeking
indemnification, which shall not be reasonably withheld, settle or
compromise any claim, or permit a default or consent to the entry of
any judgment in respect thereof, unless such settlement, compromise or
consent includes, as an unconditional term thereof, the giving by the
claimant to the party seeking indemnification of an unconditional
release from all liability in respect of such claim.
(d) The indemnification provided by this Section 10 shall not be
deemed exclusive of, or to preclude, any other rights to which those
seeking indemnification may at any time be entitled under the
Company's Articles of Incorporation, Bylaws, any law, agreement or
vote of shareholders or disinterested Directors, or otherwise, or
under any policy or policies of insurance purchased and maintained by
the Company on behalf of Executive, both as to action in his
Employment and as to action in any other capacity.
(f) Neither Termination nor completion of the Employment shall
effect these indemnification provisions which shall then remain
operative and in full force and effect.
11. Termination
This Agreement and the employment relationship created hereby will
terminate (i) upon the disability or death of Executive under Section 11 (a) or
11(b); (ii) with cause under Section 11 (c); or (iii) for good reason under
Section 11 (d).
(a) Disability. The Company shall have the right to
terminate the employment of Executive under this Agreement
for disability in the event Executive suffers an injury,
illness, or incapacity of such character as to substantially
disable him from performing his duties without reasonable
accommodation by Executive hereunder for a period of more
than thirty (30) consecutive days upon Company giving at
least thirty (30) days written notice of termination.
(b) Death. This Agreement will terminate on the Death of
the Executive.
(c) With Cause. The Company may terminate this Agreement at
any time because of, (i) the conviction of Executive of an
act or acts constituting a felony or other crime involving
moral turpitude, dishonesty or theft or fraud; (ii)
Executive's gross negligence in the performance of his
duties hereunder; (iii) Executive's lack of performance of
his duties hereunder; or (iv) Executive's failure to uphold
the integrity and/or public image of the Company.
(d) Good Reason. The Executive may terminate his employment
for "Good Reason" by giving Company ten (10) days written
notice if:
(i) he is assigned, without his express written
consent, any duties materially inconsistent with his
positions, duties, responsibilities, or status with
Company as of the date hereof, or a change in his
reporting responsibilities or titles as in effect as of
the date hereof;
(ii) his compensation is reduced; or
(iii) the Company does not pay any material amount of
compensation due hereunder and then fails either to pay
such amount within the ten (10) day notice period
required for termination hereunder or to contest in
good faith such notice. Further, if such contest is not
resolved within thirty (30) days, the Company shall
submit such dispute to arbitration under Section 9.
12. Obligations of Company Upon Termination.
(a) In the event of the termination of Executive's employment
pursuant to Section 11 (a), (b) or (c), Executive will be entitled
only to the compensation earned by him hereunder as of the date of
such termination (plus life insurance or disability benefits).
(b) In the event of the termination of Executive's employment
pursuant to Section 11 (d), Executive will be entitled to receive as
severance pay, any amount earned by Executive through the date of
termination.
13. Other Provisions.
(a) All notices and statements with respect to this Agreement
must be in writing. Notices to the Company shall be delivered to the
Chairman of the Board or any vice president of the Company. Notices to
Executive may be delivered to Executive in person or sent to
Executive's then-current mailing address as indicated in the Company's
records.
(b) This Agreement sets forth the entire agreement of the parties
concerning the subjects covered herein; there are no promises,
understandings, representations, or warranties of any kind concerning
those subjects except as expressly set forth in this Agreement.
(c) Any modification of this Agreement must be in writing and
signed by all parties; any attempt to modify this Agreement, orally or
in writing, not executed by all parties will be void.
(d) If any provision of this Agreement, or its application to
anyone or under any circumstances, is adjudicated to be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability
will not affect
any other provision or application of this Agreement which can be
given effect without the invalid or unenforceable provision or
application and will not invalidate or render unenforceable such
provision or application in any other jurisdiction.
(e) This Agreement will be governed and interpreted under the
laws of the United States of America and the laws of the State of
Texas as applied to contracts made and carried out in Texas by
residents of Texas.
(f) No failure on the part of any party to enforce any provisions
of this Agreement will act as a waiver of the right to enforce that
provision.
(g) Section headings are for convenience only and shall not
define or limit the provisions of this Agreement.
(h) This Agreement may be executed in several counterparts, each
of which is an original. It shall not be necessary in making proof of
this Agreement or any counterpart hereof to produce or account for any
of the other counterparts. A copy of this Agreement signed by one
party and faxed to another party shall be deemed to have been executed
and delivered by the signing party as though an original. A photocopy
of this Agreement shall be effective as an original for all purposes.
14. Summary of Terms of Employment
Effective Date October 1, 2005
Term & Commitment Three Years, full-time, renewable
Office / Position Chief Financial Officer
Salary $75,000 per year
This Agreement contains provisions requiring binding arbitration of
disputes. By signing this Agreement, Executive acknowledges that he (i) has read
and understood the entire Agreement; (ii) has received a copy of it (iii) has
had the opportunity to ask questions and consult counsel or other advisors about
its terms; and (iv) agrees to be bound by it.
Executed to be effective as of the Effective Date.
DATA CALL TECHNOLOGIES: EXECUTIVE:
Xxxxx Xxxxxx Xxxxx Xxxxxx
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Xxxxx Xxxxxx Xxxxx Xxxxxx
Chief Executive Officer
Date: 10/4/05 Date: 10/4/05
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