Published on December 27, 2010
COMMERCETEL,
INC.
EMPLOYMENT
AGREEMENT
This Employment Agreement ("Agreement")
is made and entered into by and between DENNIS BECKER hereinafter referred to as
"Employee," and COMMERCETEL, CORP., a Nevada corporation hereinafter referred to
as "Employer," as of the 21st day of
September 2007.
WHEREAS, Employee and Employer desire
to set out the terms of Employee's employment, all as more particularly set
forth below.
NOW, THEREFORE, in consideration of the
mutual promises of the parties and the mutual benefits they will gain by their
performances thereof, all in accordance with the provisions hereinafter set
forth:
1. Term of
Employment. Employer agrees to employ Employee commencing
beginning September 21, 2007 (“Commencement Date”) to render services to
Employer in the position and with the duties and responsibilities described in
Section 2 until the date this Agreement is terminated in accordance with Section
4 (the period from the Commencement Date until such applicable date being the
“Period of Employment”). Employer shall pay Employee the compensation
to which he is entitled under Section 3 through the end of the Period of
Employment. Employee hereby accepts and agrees to such hiring,
engagement and employment.
2. Position, Duties,
Responsibilities.
2.1 Position. Employee
hereby accepts employment with Employer as President and Chief Executive Officer
of Employer. Employee shall devote his best efforts and his full time
and attention to the performance of the services customarily incident to such
office and to such other services as may be reasonably requested by
Employer. Employee agrees to serve Employer in such capacity and
position during the Period of Employment. Employee shall be
accountable and report directly and solely to the Board of Directors of Employer
(“Board”) and shall perform his duties at the direction of the
Board.
2.2 Other
Activities. Except upon the prior written consent of the
Board, Employee, during the Period of Employment, will not (i) accept any other
employment or (ii) engage, directly or indirectly, in any other business
activity (whether or not pursued for pecuniary advantage) that is or may be
competitive with, or that might place him in a competing position to that of
Employer and/or requires a time commitment that could in any way adversely
affect such Employee's performance under this Agreement.
2.3 Duty of Loyalty.
Employee agrees to refrain from engaging in any action that might be harmful to
Employer, unless Employer consents in writing in advance. During the
employment, Employee shall not, directly or indirectly without the prior written
consent of Employer, own an interest in, operate, manage or participate in,
offer consulting services to, perform, supply, or provide any similar services
to, or be connected as an officer, director, employee, agent, independent
contractor, partner, shareholder or principal of (i) any business entity or
person engaged in the same business as Employer, within San Diego County, (ii)
any customer of Employer, (iii) any Prospect (as defined below) of Employer
introduced to Employee during the term of this Agreement, or (iv) any competitor
of Employer. Nothing herein shall be construed to prevent Employee
from owning a non-controlling interest in a publicly traded
company.
2.4 Refrain from Harmful
Activities. Employee’s responsibility to promote and support
Employer’s business by its very nature requires Employee to prevent Employer
from suffering injury or hardship, if it can be avoided. Accordingly,
during the term of this Agreement and for a period of one (1) year following the
termination of this Agreement for whatever reason, Employee shall not directly
or indirectly (for Employee’s benefit or for the benefit of any other person or
entity) (a) disclose, distribute, or otherwise make known to any person, firm,
or other entity the identity of any customers, investors, and technology and
marketing strategic partners to whom Employee has been introduced by Employer or
become acquainted with or learned about in any way during the time when Employee
provided services to or for Employer (“Prospects”) for the purpose of marketing
or establishing a business relationship with the Prospects or any information
pertaining to them, or (b) call on, solicit, take away, or attempt to call on,
solicit, or take away any Prospects, or (c) induce or persuade or assist others
in inducing or persuading any Prospects to reduce or discontinue doing business
with Employer and/or (d) induce or persuade or assist others in inducing or
persuading any vendor of Employer to reduce or discontinue doing business with
Employer.
3. Compensation, Benefits,
Expenses.
3.1 Compensation. Employee
shall be compensated at the rate of $20,000.00 (Twenty Thousand Dollars) per
month, payable at the same time and in the same manner as paid to other
employees and Officers of Employer and subject to the usual payroll
deductions. As additional consideration for the services to be
rendered by Employee hereunder, upon the Commencement Date, Employee shall be
issued Five Hundred Thousand, (500,000) shares of common stock of Employer
(“Compensation Shares”) valued as initially issued Common Stock of Employee at
Twenty Five Cents ($0.25) per share. Upon purchase of the
Compensation Shares by Employee, Employer shall deliver to Employee a copy of a
duly authorized stock certificate representing all of the Compensation Shares
and issued in the name of Employee. Such Compensation Shares shall be
subject to the following:
3.1.1 Repurchase Option of
Employer
a. Repurchase
Option. In the event this Agreement is terminated (i)
voluntarily by Employee pursuant to Section 4.1 of the Agreement; (ii) pursuant
to Section 4.2 or Section 4.3; or (iii) by Employer in accordance with Section
4.4 of this Agreement before all of the shares of the Compensation Shares are
released (see Section 3.1.1(b) below) from Employer's Repurchase Option (as
defined herein), Employer shall, upon the date of such termination have an
irrevocable, exclusive option (which option may be assigned by Employer) (the
"Repurchase Option") for a period of 90 days (or such longer period of time
either mutually agreed to by Employee and Employer) from such date to repurchase
some or all of the Unreleased Shares (as defined in Section 3.1.1(b)) at such
time at the original price per share paid by Employee for the Compensation
Shares (the "Repurchase Price"). In the event this Agreement is
terminated by Employer pursuant to Section 4.5 of this Agreement, all of the
Compensation Shares shall be released from the Repurchase Option and the
Repurchase Option shall terminate and be of no further force or effect,
contingent upon Employee’s signing of the General Release pursuant to Section
4.5 hereof. Said Repurchase Option shall be exercised by Employer by
written notice to Employee or Employee's executor with a check in the amount of
the aggregate Repurchase Price for the number of Compensation Shares being
repurchased. Upon delivery of such notice and the payment of the
aggregate Repurchase Price for the Compensation Shares being repurchased,
Employer shall become the legal and beneficial owner of the Compensation Stock
being repurchased and all rights and interests therein or relating thereto, and
Employer shall have the right to retain and transfer to its own name the number
of Compensation Shares of Compensation Shares being repurchased by
Employer.
b. Release of Compensation
Shares from Repurchase Option. The Compensation Shares shall
be released from the Repurchase Option as follows: (i) One Hundred
and Twenty Five Thousand (165,000) of the Compensation Shares shall be released
as of the Commencement Date; (ii) One Thirty Sixth (1/36) of the Compensation
Shares shall be released pro-rata per month during the Twenty-Four (24) months
of the Period of Employment.
c. Release of Compensation
Shares from Repurchase Option in the Event of a Sale, Merger or Other
Acquisition of Employer or an Initial Public Offering (IPO) by
Employer. In the event of a merger, sale or other acquisition
of Employer or IPO by Employer prior to the completion of the Release of
Compensation Shares from Repurchase Option in Section 3.1.1(c) above, the
Compensation Shares shall be released from the Repurchase Option in
full.
d. Delivery of
Shares. Share certificates representing the Unreleased Shares
(as defined in Section 3.1.1(b)) shall be held by Employer for the benefit of
Employee. Shares of Compensation Shares which (i) have been released
from Employer's Repurchase Option and (ii) have been paid for in full shall be
delivered to Employee at Employee's written request.
3.1.2 Adjustments for Stock
Splits. All references to numbers of Compensation Shares and the
Repurchase Price in this Agreement shall be appropriately adjusted to reflect
any stock split, stock dividend or other change in the Compensation Shares which
may be made by Employer after the date of this Agreement.
3.1.3 Restrictions on
Transferability. Employee shall not hypothecate, pledge,
or otherwise encumber any of the Compensation Shares, or any interest in the
Compensation Shares, without the prior consent of Employer. Employee
acknowledges and agrees that in addition to the terms of this Agreement, the
Compensation Shares are further subject to the terms and conditions of the
Bylaws of Employer (“Bylaws”), which, among other things, provides for rights of
first refusal of Employer and/or the other shareholders of Employer to purchase
any Compensation Shares proposed to be transferred by Employee. In
addition to the restrictions upon transfer imposed by this Agreement and the
Bylaws, Employee acknowledges that the Compensation Shares may not be
transferred, sold, assigned, hypothecated or encumbered unless (i) subject to an
effective registration statement under the Securities Act of 1933, as amended,
unless an exemption is available from the registration requirements of such Act,
and (ii) permitted by all applicable state securities laws. Each
Compensation Share certificate of Employer owned by Employee shall have endorsed
thereon the following words:
"ANY
TRANSFER, ACQUISITION OR PLEDGE OF THE SHARES REPRESENTED BY THIS CERTIFICATE,
OR THE TRANSFER OF ANY INTEREST IN THOSE SHARES, IS RESTRICTED BY THE PROVISIONS
OF AN EMPLOYMENT AGREEMENT DATED SEPTEMBER 21st, 2007
BY AND BETWEEN DENNIS BECKER AND COMMERCETEL, CORP. (“EMPLOYMENT AGREEMENT’) AND
THE BYLAWS OF COMMERCETEL, CORP. (“BYLAWS”). A COPY OF THE EMPLOYMENT
AGREEMENT AND THE BYLAWS MAY BE INSPECTED AT THE PRINCIPAL OFFICE OF
COMMERCETEL, INC. ALL OF THE PROVISIONS OF SAID EMPLOYMENT AGREEMENT
AND BYLAWS ARE INCORPORATED HEREIN. THE EMPLOYMENT AGREEMENT AND THE
BYLAWS ARE AUTOMATICALLY BINDING UPON ANY PERSON WHO ACQUIRES OR IS TRANSFERRED
SHARES.”
An
executed copy of this Agreement shall be delivered to the Secretary of Employer
and shall be shown by the Secretary to any person duly authorized in writing by
a shareholder who then holds Compensation Shares subject to this
Agreement.
3.1.3 Shares Subject to
Dilution. Employee acknowledges and agrees that the proportion
of issued and outstanding shares in Employer represented by the Compensation
Shares will be subject to dilution as a result of future issuance of securities
by Employer such that Employee’s proportionate ownership interest of Employer
may be altered and proportionately reduced.
3.1.4 Tax Consequences of Receipt
of Shares. Employee acknowledges and agrees that it may
receive from Employer a Form 1099 in connection with the Compensation Shares
received by Employee hereunder and that it may be eligible to make an election
under Section 83(b) of the Internal Revenue Code of 1986, as amended, which
election must be made within thirty (30) days from the transfer of such
Compensation Shares to Employee. Notwithstanding the foregoing,
Employee acknowledges that Employer does not purport to give and is not
qualified to give Employee any advice as to tax consequences or obligations
arising from the Compensation Shares received by Employee. Employee
acknowledges that Employer has recommended that it consult with its tax advisors
as to such tax matters.
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3.2
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Benefits.
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3.2.1 Insurance. Employee
shall be eligible to receive any health, dental, disability, and life insurance
benefits adopted by the Board to be provided by Employer to its employees, if
any.
3.2.2 Retirement Plan/Profit
Sharing or Similar Plans. Employee shall be eligible to
participate in the retirement plan adopted by the Board, if any.
3.2.3 Vacation and Professional
Time. Employee shall earn paid vacation time at the rate of
four (4) calendar weeks per year. At the completion of each calendar
year, Employer shall pay Employee a cash lump sum payment for any unused
vacation or professional time from the recently completed calendar
year. Any unused vacation or professional time shall be paid in a
cash lump sum payment promptly after Employee's termination of employment,
regardless of the reason for such termination, or at such earlier time as
required to avoid forfeiture of accrued, but unused vacation or professional
time as described above.
3.2.4 Expenses. Employer
shall reimburse Employee on a monthly basis for receipts he submits for all
reasonable and necessary travel and other business expenses incurred by Employee
in the performance of his duties hereunder, consistent with Employer's normal
expense reimbursement policy.
4. Termination of
Employment. Employee's employment may only be terminated prior
to the expiration of the Initial Term Date upon the first to occur of the
following events:
4.1 Voluntary Termination
Without Cause. By Employee may voluntarily terminate this
Agreement at any time upon (30) days prior written notice to
Employer.
4.2 By
Death. Employee's employment will terminate automatically on
the death of Employee. Employer will pay to Employee's beneficiaries
or estate, as appropriate, the compensation to which he is entitled pursuant to
Section 3 above through the end of the day of such termination, and thereafter
Employer's obligation to Employee and/or to his beneficiaries or estate will
terminate. Employee will cooperate with Employer's efforts to obtain
life insurance to reimburse Employer for its costs of payments to Employee or
his estate, if Employer chooses to obtain insurance for such
purpose.
4.3 By
Disability. If Employee is totally and permanently disabled or
is prevented from substantially performing his duties under this Agreement
because of any illness or physical or mental disability for a period or periods
of more than one hundred twenty (120) days in the aggregate during any calendar
year or thirty (30) consecutive days in any twelve (12) month period, then
Employee's employment will terminate on the last day of the period in which the
day evidencing incapacity occurs (i.e., the final day of the 120-day aggregate
period or of the 30-day consecutive period). All of Employer's other
obligations will terminate on the date of termination. Employee will
cooperate with Employer's efforts to obtain disability insurance to reimburse
Employer for its costs of such payment, if Employer chooses to obtain disability
insurance for such purpose. Employee shall be deemed totally and permanently
disabled if the Board reasonably determines that Employee is incapable of
continuing the further performance of his essential job duties/functions as
required under this Agreement. Such determination shall be made in
accordance with all applicable laws.
4.4 By Employer with
Cause. Employer may terminate this Agreement for
Cause.
4.4.1 For
purposes of this Agreement “Cause” shall mean any one of the
following:
4.4.1.1 conviction
of Employee for a felony or other crime involving moral turpitude;
4.4.1.2 gross
negligence of or misconduct by Employee, resulting or likely to result in harm
to Employer;
4.4.1.3 refusal
or failure of Employee to carry out the reasonable or lawful directives of the
Board;
4.4.1.4 disregard
or violation of a material policy of Employer by Employee; or
4.4.1.5 material
breach of or failure of Employee to perform his obligations under the Employment
Agreement (except for reasonable time off due to illness, in accordance with the
terms and conditions of this Agreement and applicable law) or the
Confidentiality and Nondisclosure Agreement attached hereto.
4.4.2. Cure of
Default. To the extent the occurrence of any of the foregoing
(a "Default") is not susceptible to cure, Employer may terminate Employee's
employment immediately. To the extent the occurrence is curable,
Employee shall have five (5) days after written notice from Employer to cure the
Default in the event of a termination under subsections 4.4.1.5. No
cure period will be provided under subsections 4.4.1.1, 4.4.1.2, 4.4.1.3 or
4.4.1.4. Any notice of termination provided by Employer to Employee
under this Section 4.4 shall identify the events or conduct constituting the
grounds for termination with sufficient specificity so as to enable Employee to
take steps to cure the same (if susceptible to cure).
4.5 By Employer Without
Cause. Employer may terminate Employee without Cause upon five
(5) days prior written notice. In the event Employer terminates
Employee's employment without Cause, the liability of Employer to Employee as a
result of or in connection with such termination, and Employee's exclusive
remedy for such termination, will be limited to the release of the Compensation
Shares pursuant to Section 3.1.1(a) and compensation at Employee’s current rate
of compensation at such time for a period of six (6) months. Notwithstanding
anything herein to the contrary, the Compensation Shares shall only be released
if and only if Employee executes and delivers the General Release, substantially
in the form attached hereto as Exhibit "A" and does not later revoke such
General Release in accordance with the terms of the General
Release. For purposes of this Agreement termination by Employer
“without Cause” shall include any attempt by Employer to substantially reduce
Employee's compensation, benefits or job responsibilities.
5. Confidentiality and
Nondisclosure Agreement. Concurrently herewith, Employee will
execute and deliver to Employer a Confidentiality and Nondisclosure Agreement,
substantially in the form attached hereto as Exhibit "B" the terms of which are
incorporated herein by this reference.
6. Headings. The
headings and captions of this Agreement are inserted for convenience only and
shall not be used to interpret or construe any provisions of this
Agreement.
7. Notices. All
notices or other communications required hereunder shall be made in writing and
shall be deemed to have been duly given if delivered by hand or mailed, postage
prepaid, by certified or registered mail, return receipt requested, and
addressed as follows:
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To
Employer:
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To
Employee:
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COMMERCETEL,
Corp.
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Dennis
Becker
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Attn: Brian
Tobin
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1051
Beryl St., Unit D
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8929
Aero Drive Ste E
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San
Diego, CA 92109
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Notice of
change of address shall be effective only when done in accordance with this
Section 7.
8. Entire
Agreement.
8.1 This
Agreement supersedes any and all other agreements, either oral or in writing,
between the parties hereto with respect to the employment of Employee by
Employer. This Agreement contains all of the covenants and agreements
between the parties with respect to such employment, except as provided
herein. The terms of this Agreement are intended by the parties to be
the final expression of their agreement and may not be contradicted by evidence
of any prior, contemporaneous or subsequent agreement. The parties
further intend that this Agreement shall constitute the complete and exclusive
statement of its terms and that no extrinsic evidence whatsoever may be
introduced in a judicial, administrative or other legal proceeding involving
this Agreement. The terms of this Agreement may only be modified if
done so in writing and signed by the parties.
8.2 In
the event Employer has or will promulgate a general employee manual or other
written employment policies for its employees, appropriate policies shall apply
to Employee except to the extent such policies are contrary to this
Agreement.
9. Amendments and
Waivers. This Agreement may not be modified, amended or
terminated except as provided in the Agreement or by an instrument in writing,
signed by Employee and by a duly authorized representative of Employer other
than Employee. Through an instrument in writing similarly executed,
either Employee or Employer, as the case may be, may waive compliance by the
other party with any provision of this Agreement that such other party was or is
obligated to comply with or perform, provided, however, that such waiver shall
not operate as a waiver of, or estoppel with respect to, any other or subsequent
failure. The failure of any party to insist in any one or more
instances upon performance with any term or condition of this Agreement shall
not be construed as a waiver of its or his future performance. The
obligations of either party with respect to such term, covenant or condition
shall continue in full force and effect.
10. Law Governing
Agreement. The validity, interpretation, enforceability and
performance of this Agreement shall be governed by and construed in accordance
with the laws of the State of California.
11. Severability and
Enforcement. If any terms, covenants or conditions in this
Agreement, or the applications thereof to any person, party, place or
circumstance, shall be held by an arbitrator or court of competent jurisdiction
to be invalid, unenforceable or void, the remainder of this Agreement or the
application of such terms, covenants or conditions as applied to other persons,
parties, places and circumstances shall remain in full force and
effect.
12. Employee
Acknowledgment. Employee acknowledges (i) that he has
consulted with or has had the opportunity to consult with independent counsel of
his own choice, concerning this Agreement and has been advised to do so by
Employer, and (ii) that he has read and understands the Agreement, is fully
aware of its legal effect and has entered into it freely based on his own
judgment.
13. Joint
Preparation. This Agreement is deemed to have been prepared
jointly by the parties hereto and to any uncertainty or ambiguity existing
herein, if any, shall not be interpreted against any party, but shall be
interpreted according to the application of the rules of interpretation for arms
length agreements taking into account the specific intention of the parties
wherever such intention is discernable.
14. Binding Arbitration
Agreement. In the event of any dispute between Employee and
Employer or any of its agents, employees, affiliated entities, successors or
assigns, arising out of or relating to the interpretation, application, breach,
arbitrability, or enforceability of this Agreement, or any other dispute arising
out of or relating to Employee's employment or relationship with Employer, any
such dispute must be resolved in accordance with the Arbitration Agreement,
attached hereto as Exhibit “C"
The parties have duly executed this
Agreement as of the day and year set forth above.
| EMPLOYER: | EMPLOYEE: | ||||
| COMMERCETEL, Corp | |||||
| By: |
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Brian
Tobin
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Dennis
Becker
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||||
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Its:
Chairman
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CEO
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EXHIBIT
A
GENERAL
RELEASE OF CLAIMS
This General Release of Claims
(hereinafter "Release") is entered into this __ day of _______, 200_, by and
between Dennis Becker (hereinafter "Releasor") and COMMERCETEL, Corp.
(hereinafter "Releasee").
RECITALS
A. Effective
_______ __, 200_, Releasor became employed by Releasee according to the terms
and conditions of an employment agreement ("Employment Agreement").
B. On
or about __________, Releasee terminated the employment of Releasor without
"Cause" as that term is defined in the Employment Agreement.
C. According
to the terms and conditions of the Employment Agreement, Releasor is entitled to
certain compensation so long as Releasor executes this General Release of any
and all claims. By execution hereof, Releasor understands and agrees
that this Release is a compromise of doubtful and disputed claims, if any, which
remain untested; that there has not been a trial or adjudication of any issue of
law or fact herein; that the terms and conditions of this Release are in no way
to be construed as an admission of liability on the part of Releasee and that
Releasee denies liability and intends merely to avoid litigation with this
Release.
AGREEMENT
NOW
THEREFORE FOR MUTUAL CONSIDERATION, the receipt and sufficiency of which the
parties hereto acknowledge, the parties agree as follows:
1. Releasor
does hereby unconditionally, irrevocably and absolutely release and discharge
Releasee, its owners, directors, officers, employees, agents, attorneys, heir,
representatives, legatees, stockholders, insurers, divisions, successors and/or
assigns and any related holding, parent or subsidiary corporations, from any and
all loss, liability, claims, costs (including, without limitation, attorneys'
fees), demands, causes of action, or suits of any type, whether in law and/or in
equity, related directly or indirectly or in any way connected with any
transaction, affairs or occurrences between them to date, including, but not
limited to, Releasor's employment with Releasee, the termination of said
employment and claims of emotional or physical distress related to such
employment or termination. This Release specifically applies to any
claims for age discrimination in employment, including any claims arising under
the Age Discrimination In Employment Act, the State of California Fair
Employment and Housing Act or any other statutes or laws which govern
discrimination in employment.
2. Releasor
irrevocably and absolutely agrees that he will not prosecute nor allow to be
prosecuted on his behalf in any administrative agency, whether federal or state,
or in any court, whether federal or state, any claim or demand of any type
related to the matter released above, it being an intention of the parties that
with the execution by Releasor of this Release, Releasee, its owners, officers,
directors, employees, agents, attorneys, heirs, representatives, legatees,
successors and/or assigns and any related holding, parent and subsidiary
corporations will be absolutely, unconditionally and forever discharged of and
from all obligations to or on behalf of Releasor related in any way to the
matter discharged herein.
3. Releasor
agrees that all matters relative to this Release and compromise in relation
thereto shall remain confidential. Accordingly, Releasor hereby
agrees that, with the exception of Releasor's counsel, spouse and tax advisor,
Releasor shall not discuss, disclose or reveal to any other persons, entities or
organizations, whether within or outside of the State of California, the fact of
settlement and/or terms and conditions of settlement and of this Release,
including the amount paid to settle Releasor's claims. Similarly,
Releasor shall not make, issue, disseminate, publish, print or announce any news
release, public statement or announcement with respect to these matters, or any
aspect thereof, the reasons therefore and the terms of this
Release. Further, in keeping with the spirit of this Release,
Releasor shall, upon the execution of this Release, cease and desist from taking
any further action in opposition to Releasee, respecting its past employment
policies and practices and shall never reapply for employment with Releasor;
provided, however, that nothing herein shall be deemed to preclude Releasor from
giving statements, affidavits, depositions, testimony, declarations or other
disclosures required by or pursuant to legal process.
4. Releasor
does expressly waive all of the benefits and rights granted to him pursuant to
Civil Code § 1542, which provides and reads as follows:
A general
release does not extend to claims which the creditor does not know of or suspect
to exist in his favor at the time of executing the release, which if known by
him must have materially affected his settlement with the debtor.
Releasor
does certify that he has read all of this Release, the quoted Civil Code section
and that he fully understands all of the same. Releasor hereby
expressly agrees that this Release shall extend and apply to all unknown,
unsuspected and unanticipated injuries and damages, as well as those that are
now known.
5. Releasor
further declares and represents that no promise, inducement or agreement not
herein expressed has been made to him and that this Release contains the full
and entire agreement between and among the parties, and that the terms of this
Release are contractual and not a mere recital.
6. The
validity, interpretation, and performance of this Release shall be construed and
interpreted according to the laws of the State of California.
7. This
Release may be pleaded as a full and complete defense and may be used as the
basis for an injunction against any action, suit or proceeding which may be
prosecuted, instituted or attempted by either party in breach
thereof.
8. If
any provision of this Release, or part thereof, is held invalid, void or
voidable as against the public policy or otherwise, the invalidity shall not
affect other provisions, or parts thereof, which may be given effect without the
invalid provision or part. To this extent, the provisions, and parts
thereof, of this Release are declared to be severable.
9. As
part of this Release, Releasor agrees to indemnify and hold harmless Releasee
against any claim by either the California Franchise Tax Board or the Internal
Revenue Service for Releasor's income and other taxes payable as a result of the
consideration being paid by Releasee pursuant to this Release or the Employment
Agreement. It is understood that the extent of Releasor's obligation
would be to pay all sums due to either agency as income tax and his/her portion
of social security taxes related to this Release, plus any applicable penalty
and/or interest relating to failure to timely pay the tax. It is the
intention of all parties to this Release that the severance payments made to
Releasor are proper and in accordance with all laws. However, should
there be a different determination by either the California Franchise Tax Board
or the Internal Revenue Service, Releasor will be obligated based on the terms
of this paragraph.
10. It
is understood that this Release is not an admission of any liability by any
person, firm association or corporation but is in compromise of any disputed
claim.
11. Releasor
represents, acknowledges and agrees that Releasee has advised him, in writing,
to discuss this Release with an attorney; that no promise, representation,
warranty or agreements not contained herein have been made by or with anyone to
cause him to sign this Release; that he has read this Release in its entirety,
and fully understands and is aware of its meaning, intent, contents and legal
effect; and that he is executing this Release voluntarily, and free of any
duress or coercion.
IN WITNESS WHEREOF, the
undersigned have executed this Release on the dates shown below at San Diego,
California.
| RELEASOR | |||||
| Dated: |
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Dennis
Becker
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| RELEASEE: | |||||
| COMMERCETEL, Corp. | |||||
| Dated: | By: | ||||
| Brian Tobin | |||||
| Its: | Chairman | ||||
EXHIBIT
B
CONFIDENTIALITY
AND NON-DISCLOSURE AGREEMENT
THIS AGREEMENT, is effective as of the
date shown below, by and between COMMERCETEL, Corp. ("Employer") and Dennis
Becker, as an employee ("Employee") and is in consideration of the services to
be provided by Employee for Employer and the compensation for those services to
be provided to Employee by Employer, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged. Employee and Employer agree as follows:
1. OWNERSHIP
OF EMPLOYEE DEVELOPMENTS.
1.1 As
used in this Agreement, “designs, inventions and innovations,” whether or not
they have been patented, trademarked, or copyrighted, include, but are not
limited to designs, inventions, innovations, ideas, improvements, processes,
sources of and uses for materials, plans, and systems relating to the design,
use, marketing, distribution and management of Employer’s and/or its affiliates’
services or products.
1.2 As
a material part of the terms and understandings of this Agreement, Employee
agrees to assign to Employer all designs, inventions and innovations developed,
conceived and/or reduced to practice by Employee, alone or with anyone else, in
connection with the projects assigned to Employee by Employer during the term of
this Agreement, regardless of whether they are suitable to be patented,
trademarked and/or copyrighted.
1.3 Employee
agrees to disclose to Employer any design, invention or innovation relating to
the business of Employer and/or its affiliates, which Employee develops,
conceives and/or reduces to practice in connection with the projects assigned to
Employee by Employer, either alone or with anyone else, during the term of this
Agreement and/or within twelve (12) months of the termination of this
Agreement. Employee shall disclose all designs, inventions and/or
innovations to Employer, even if Employee does not believe that he is required
under this Agreement, to assign his or her interest in such design, invention or
innovation to Employer. If Employer and Employee disagree as to
whether or not a design, invention or innovation is included within the terms of
this Agreement, it will be the responsibility of Employee to prove that it is
not included.
1.4 The
obligation to assign as provided in this Agreement does not apply to any design,
invention or innovation to the extent such obligation would conflict with any
provincial or federal law. The obligation to assign as provided in this
Agreement does not apply to any design, invention or innovation that Employee
developed entirely on Employee’s own time without using Employer’s equipment,
supplies, facilities or Confidential Information and/or Trade Secrets (as
defined in Section 2) except those designs, inventions or innovations that
either:
(i) Relate
at the time of conception or reduction to practice of the design, invention or
innovation to Employer’s and/or its affiliates’ business, or actual or
demonstrably anticipated research of Employer’s and/or its affiliates’ products;
or
(ii) Result
from any work performed by Employee for Employer and/or its
affiliates.
1.
5 Employee
agrees that any design, invention and/or innovation which is required under the
provisions of this Agreement to be assigned to Employer shall be the sole and
exclusive property of Employer. Upon Employer 's request, at no
expense to Employee, Employee shall execute any and all proper applications for
patents, copyrights and/or trademarks, assignments to Employer, and all other
applicable documents, and will give testimony when and where requested to
perfect the title and/or patents in all designs, inventions and/or innovations
belonging to Employer.
1.6 The
provisions of this Section 1 shall survive the termination or expiration of this
Agreement, and shall be binding upon Employee in perpetuity.
2. TRADE
SECRETS AND CONFIDENTIALITY
2.1 Definition. As
used in this Agreement, the term "Trade Secrets and Confidential Information"
means information, whether written or oral, not generally available to the
public, regardless of whether it is suitable to be patented, copyrighted and/or
trademarked, which is received from Employer and/or its affiliates, either
directly or indirectly, including but not limited to (a) concepts, ideas, plans
and strategies involved in Employer’s and/or its affiliates’ products; (b) the
processes, formulae and techniques disclosed by Employer and/or its affiliates
to Employee or observed by Employee; (c) the designs, inventions and innovations
and related plans, strategies and applications which Employee develops during
the duration of this Agreement in connection with the projects assigned to
Employee by Employer and/or its affiliates; and (d) third party information
which Employer and/or its affiliates has/have agreed to keep
confidential. It does not include the following: (i)
information which, at the time of disclosure or observation, had been previously
published or otherwise publicly disclosed; (ii) information which is published
(or otherwise publicly disclosed) after disclosure or observation, unless such
publication is a breach of this Agreement or is otherwise a violation of the
contractual, legal or fiduciary duties owed to Employer, which violation is
known to Employee; or (iii) information which, subsequent to disclosure or
observation, is obtained by Employee from a third person who is lawfully in
possession of such information (which information is not acquired in violation
of any contractual, legal, or fiduciary obligation owed to Employer with respect
to such information, and is known by Employee) and who is not required to
refrain from disclosing such information to others.
2.2 No Disclosure of Trade
Secrets and Confidential Information. During the duration of
this Agreement, Employee will have access to and become familiar with various
Trade Secrets and Confidential Information. Employee acknowledges
that the Trade Secrets and Confidential Information are owned and shall continue
to be owned solely by Employer. Employee agrees that Employee will
not, at any time, whether during or subsequent to the term of employment with
Employer, use for Employee’s own benefit Trade Secrets and Confidential
Information for any competitive purpose or to divulge the same to any person
other than Employer or persons with respect to whom Employer has given its
written consent, unless this information has already become known to the public,
or Employee is compelled to disclose it by governmental process. In
the event Employee believes that Employee is legally required to disclose any
Trade Secrets or Confidential Information, Employee shall give reasonable notice
to Employer prior to disclosing such information and shall assist Employer in
taking such legally permissible steps as are reasonable and necessary to protect
the Trade Secrets or Confidential Information. If Employee believes
that it is necessary for Employee to disclose any Trade Secrets or Confidential
Information, Employee shall first obtain written consent to do so from Employer,
and the party to whom the disclosure is to be made shall execute a
non-disclosure agreement in a form acceptable to Employer, before Employee shall
make such disclosure.
2.3 No Removal of Employer’s
Documents or Information. Employee understands and agrees that
all books, records, customer lists and documents connected with the business of
Employer and/or its affiliates are the property of and belong to
Employer. Under no circumstances shall Employee remove from
Employer’s facilities any of Employer’s and/or its affiliates’ books, records,
documents, lists or any copies of the same without Employer’s written
permission, nor shall Employee make any copies of Employer’s and/or its
affiliates’ books, records, documents or lists for use outside Employer’s office
except as specifically authorized by Employer. Employee shall return
to Employer all books, records, documents and customer lists belonging to
Employer and/or its affiliates upon termination of Employee’s employment with
Employer.
2.4 The
provisions of Section 2 shall survive the termination or expiration of this
Agreement, and shall be binding upon Employee in perpetuity.
3. RETURN
OF MATERIALS. Upon the request of Employer and, in any event, upon
the termination of Employee's employment, Employee must return to Employer and
leave at its disposal all memoranda, notes, records, drawings, manuals, computer
programs, documentation, diskettes, computer tapes, and other documents or media
pertaining to the business of Employer or Employee's specific duties for
Employer, including all copies of such materials. Employee must also
return to Employer and leave at its disposal all materials involving any
Confidential Information of Employer. This Section 3 is intended to
apply to all materials made or compiled by Employee, as well as to all materials
furnished to Employee by anyone else in connection with Employee's
employment.
4. MISCELLANEOUS
4.1 Survival of
Obligations. The covenants in this Agreement shall survive
termination of Employee's employment, regardless of who causes the termination
and under what circumstances.
4.2 Construction. The
headings used herein are for convenience or reference only and shall not affect
the construction of, or be taken into consideration in interpreting, any
provision of this Agreement. In the interpretation and construction
of this Agreement, the acknowledge that the terms hereof reflect extensive
negotiations between the parties and that this Agreement shall not be deemed,
for the purpose of construction and/or interpretation, that either party drafted
this Agreement.
4.
3 Governing Law, Jurisdiction
and Venue. This Agreement will be governed by and construed in
accordance with the laws of the State of California without reference to its
choice of law rules and as if wholly performed within the State of
California. Any litigation regarding the interpretation, breach or
enforcement of this Agreement will be filed in and heard by the state or federal
courts with jurisdiction to hear such disputes in San Diego, County, California,
and the parties hereby expressly submit to the jurisdiction of such
courts.
4.4 Entire
Agreement. This Agreement sets forth the entire understanding
and agreement between the parties with respect to the subject matter hereof and
supersedes all other oral or written representations and
understandings. This Agreement may only be modified by a writing
signed by Employee and Employer.
4.5 No Implied
License. No rights or obligations other than those expressly
recited herein are to be implied from this Agreement. No license is
hereby granted, directly or indirectly, to any of the Trade Secrets and
Confidential Information disclosed.
4.6 Severability. The
parties agree that this Agreement is severable and that in the event any
provision of this Agreement is held to be illegal, invalid or unenforceable, the
legality, validity and enforceability of the remaining provisions will not be
affected or impaired. Additionally, the parties expressly grant to
any court or other entity interpreting this Agreement the power and authority to
modify the terms of this Agreement to extent necessary to allow enforcement of
this Agreement to the fullest extent allowed by law.
4.7 Successors and
Assigns. This Agreement shall be binding upon the successors,
assigns and legal representatives of Employee, and inures to the benefit of any
successors or assigns of Employer.
4.8 Waivers. No
waiver of any of the provisions of this Agreement shall be deemed to be or shall
constitute a waiver of any other provision of this Agreement, whether or not
similar, nor shall any waiver constitute a continuing waiver. No
waiver of any provision of this Agreement shall be binding on the parties hereto
unless it is executed in writing by the party making the waiver.
IN WITNESS WHEREOF, the parties have
entered into this agreement as of the date set forth below.
Dated:
_________ __, 200_
| EMPLOYEE: | EMPLOYER: | ||||
| COMMERCETEL, Corp. | |||||
| By: |
|
||||
| Signature |
Brian
Tobin
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| Dennis Becker |
Chairman
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| Social Security Number: | |||||
|
Address:
|
|||||
EXHIBIT
C
EMPLOYEE
ARBITRATION AGREEMENT
THIS ARBITRATION AGREEMENT
("Agreement") is made and effective as of _______ __, 200_, by and between
COMMERCETEL, Corp. ("Employer"), and Dennis Becker ("Employee").
The purpose of this Agreement is to
establish final and binding arbitration for all disputes arising out of
Employee's employment or the termination of Employee's
employment. Employee and Employer desire to arbitrate their disputes
on the terms and conditions set forth below, in order to gain the benefits of a
speedy, impartial dispute-resolution procedure. Employee and Employer
agree to the following:
1. Claims Covered By The
Agreement. Employee and Employer mutually consent to the
resolution by final arbitration of all claims or controversies ("claims") that
Employer may have against Employee or that Employee may have against Employer or
against its officers, directors, partners, employees, agents, pension or benefit
plans, administrators, or fiduciaries, or any subsidiary or affiliated company
or corporation (collectively referred to as "Employer"), relating to, resulting
from, or in any way arising out of Employee's employment relationship with
Employer and/or the termination of Employee's employment relationship with
Employer. The claims covered by this Agreement include, but are not
limited to, claims for wages or other compensation due; claims for breach of any
contract or covenant (express or implied); tort claims; claims for
discrimination (including, but not limited to, race, sex, religion, national
origin, age, marital status or medical condition, disability, or sexual
orientation); claims for benefits (except where an employee benefit or pension
plan specifies that its claims procedure shall culminate in an arbitration
procedure different from this one); and claims for violation of any federal,
state or other governmental law, statute, regulation or ordinance, except claims
excluded in the following section.
2. Claims Not Covered By The
Agreement. Claims Employee may have for Workers' Compensation
or unemployment compensation benefits are not covered by this
Agreement. Also not covered are claims by Employer for injunctive
and/or other equitable relief for unfair competition and/or the use and/or
unauthorized disclosure of trade secrets or confidential information, as to
which Employee understands and agrees that Employer may seek and obtain relief
from a court of competent jurisdiction.
3. Required Notice Of Claims
And Statute Of Limitations. Arbitration may be initiated by
Employee by serving or mailing a written notice to the Chairman of the Board of
Directors of Employer. In the case of a termination of employment,
the notice must be served or mailed within one (1) year of the termination of
employment. In an arbitration not arising out of termination of
Employee's employment, the written notice must be served or mailed within one
(1) year of the event which gave rise to the claim for
arbitration. Employer may initiate an arbitration by serving or
mailing a written notice to Employee at the last address recorded in Employee's
personnel file, within one (1) year of the event which gave rise to the
arbitration. The notice shall identify and describe the nature of all
claims asserted and the facts upon which such claims are
based. Failure to comply with all the requirements of this paragraph
will constitute a waiver of all rights that the party seeking arbitration may
have against the other party, and any such claims shall be void.
4. Arbitration
Procedures.
4.1 After
demand for arbitration has been made by serving written notice under the terms
of Section 3 of this Agreement, the party demanding arbitration shall file a
demand for arbitration with the American Arbitration Association ("AAA") in San
Diego County.
4.2 Except
as otherwise provided in this Agreement, the arbitration will be conducted
according to the then current version of the AAA Employment Dispute Resolution
Rules. The AAA shall give each party a list of seven arbitrators from
its panel of labor and employment arbitrators. Each party shall
alternatively strike one of the arbitrators from the list until only one
arbitrator remains. A coin flip will determine which party chooses
whether it desires to strike first or second.
4.3 The
arbitrator shall apply the substantive law (and the law of remedies, if
applicable) of the state of California, or federal law, or both, as applicable
to the claim(s) asserted. The arbitrator shall have exclusive
authority to resolve any dispute relating to the interpretation, applicability,
enforceability or formation of this Agreement, including but not limited to any
claim that all or any part of this Agreement is void or voidable.
5. Arbitration
Decision. The arbitrator's decision will be final and
binding. A party's right to appeal the decision is limited to grounds
provided under applicable federal or state law.
6. Place Of
Arbitration. The arbitration will be at a mutually convenient
location which must be within 50 miles of Employee's last employment location
with Employer. If the parties cannot agree upon a location, then the
arbitration will be held at the AAA's office nearest to Employee's last
employment location with Employer.
7. Construction. Should
any portion of this Agreement be found to be unenforceable, such portion will be
severed from this Agreement, and the remaining portions shall continue to be
enforceable.
8. Consideration. Employer's
offer of employment to Employee and the promises by Employer and Employee to
arbitrate differences, rather than litigate them before courts or other bodies,
provide consideration for each other.
9. Arbitration Fees and
Costs. The losing party shall be responsible for the
arbitrator's fees and costs. Each party may be represented by an
attorney or other representative selected by the party. Each party
shall be responsible for its own attorneys' or representative's
fees. However, if any party prevails on a statutory claim which
affords the prevailing party's attorneys' fees, or if there is a written
agreement providing for fees, the arbitrator may award reasonable fees to the
prevailing party.
10. Waiver of Jury
Trial/Exclusive Remedy. EMPLOYEE AND EMPLOYER WAIVE ANY
CONSTITUTIONAL RIGHT TO HAVE ANY DISPUTE BETWEEN THEM COVERED BY THE TERMS OF
THIS AGREEMENT DECIDED BY A COURT OF LAW AND/OR BY A JURY IN A COURT PROCEEDING
AND/OR BY ANY ADMINISTRATIVE AGENCY.
11. Sole And Entire
Agreement. This Agreement expresses the entire Agreement of
the parties and there are no other agreements, oral or written, concerning
arbitration, except as provided herein. This Agreement is not, and
shall not be construed to create, any contract of employment, express or
implied.
12. Requirements for
Modification or Revocation. This Agreement to arbitrate shall
survive the termination of Employee's employment. It can only be
revoked or modified by a writing signed by the Chairman of the Board of
Directors of Employer and Employee which specifically states an intent to revoke
or modify this Agreement.
13. Voluntary
Agreement. EMPLOYEE ACKNOWLEDGES THAT EMPLOYEE HAS CAREFULLY
READ THIS AGREEMENT, UNDERSTANDS ITS TERMS, AND AGREES THAT ALL UNDERSTANDINGS
AND AGREEMENTS BETWEEN EMPLOYER AND EMPLOYEE RELATING TO THE SUBJECTS COVERED IN
THE AGREEMENT ARE CONTAINED IN IT. EMPLOYEE HAS VOLUNTARILY ENTERED
INTO THE AGREEMENT WITHOUT RELIANCE ON ANY PROVISIONS OR REPRESENTATIONS BY
EMPLOYER, OTHER THAN THOSE CONTAINED IN THIS AGREEMENT.
EMPLOYEE
FURTHER ACKNOWLEDGES THAT EMPLOYEE HAS BEEN GIVEN THE OPPORTUNITY TO DISCUSS
THIS AGREEMENT WITH EMPLOYEE'S PRIVATE LEGAL COUNSEL AND EMPLOYEE HAS UTILIZED
THAT OPPORTUNITY TO THE EXTENT DESIRED.
| Dated: _________ __, 200_ | EMPLOYER: | ||
| COMMERCETEL, Corp. | |||
|
|
By:
|
||
| Brian Tobin | |||
| Its: Chairman | |||
|
EMPLOYEE:
|
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|
|
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|
Dennis
Becker
|
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March
16th,
2009
Dennis
Becker, CEO
8929 Aero
Drive, Suite E
San
Diego, CA 92123
Dear
Dennis:
Reference
is made to that certain employment agreement dated September 21, 2007 (the
"Employment Agreement") between you and CommerceTel, Corp., a Nevada
corporation, (the "Company") regarding the terms of your employment with the
Company. This will confirm our understanding that the Employment
Agreement is hereby amended as follows:
1. Sections
3.1 and 3.1.1 are hereby deleted and following is inserted in its
place:
|
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3.
|
Compensation,
Benefits, Expenses.
|
3.1 Compensation. Employee
shall be compensated at the rate of $170,000.00 (One Hundred Seventy Thousand
Dollars) per year, payable at the same time and in the same manner as paid to
other employees and Officers of Employer and subject to the usual payroll
deductions. Employee may be eligible to receive an annual bonus
compensation from the Company in an amount up to $130,000.00 (One Hundred Thirty
Thousand Dollars) as determined by the Compensation Committee based on
attainment of target performance objectives which shall be set by the
Compensation Committee of the Board of the Directors of the
Company. As additional consideration for the services to be rendered
by Employee hereunder, upon the Commencement Date, Employee shall be issued
1,500,000 (One Million Five Hundred Thousand) shares of common stock of
CommerceTel Canada Corporation (“Compensation Shares”) valued as initially
issued Common Stock of Employee at Four Cents ($0.04 CDN) per
share. Employee shall pay the total purchase price for the Issued
Shares to Employer at some time during the Period of Employment. Upon
purchase of the Compensation Shares by Employee, Employer shall deliver to
Employee a copy of a duly authorized stock certificate representing all of the
Compensation Shares and issued in the name of Employee. Such
Compensation Shares shall be subject to the following:
|
|
3.1.1
|
Repurchase Option of
Employer
|
a. Repurchase
Option. In the event this Agreement is terminated (i)
voluntarily by Employee pursuant to Section 4.1 of the Agreement; (ii) pursuant
to Section 4.2 or Section 4.3; or (iii) by Employer in accordance with Section
4.4 of this Agreement before all of the shares of the Compensation Shares are
released (see Section 3.1.1(b) below) from Employer's Repurchase Option (as
defined herein), Employer shall, upon the date of such termination have an
irrevocable, exclusive option (which option may be assigned by Employer) (the
"Repurchase Option") for a period of 90 days (or such longer period of time
either mutually agreed to by Employee and Employer) from such date to repurchase
some or all of the Unreleased Shares (as defined in Section 3.1.1(b)) at such
time at the original price per share paid by Employee for the Compensation
Shares (the "Repurchase Price"). In the event this Agreement is
terminated by Employer pursuant to Section 4.5 of this Agreement, all of the
Compensation Shares shall be released from the Repurchase Option and the
Repurchase Option shall terminate and be of no further force or effect,
contingent upon Employee’s signing of the General Release pursuant to Section
4.5 hereof. Said Repurchase Option shall be exercised by Employer by
written notice to Employee or Employee's executor with a check in the amount of
the aggregate Repurchase Price for the number of Compensation Shares being
repurchased. Upon delivery of such notice and the payment of the
aggregate Repurchase Price for the Compensation Shares being repurchased,
Employer shall become the legal and beneficial owner of the Compensation Stock
being repurchased and all rights and interests therein or relating thereto, and
Employer shall have the right to retain and transfer to its own name the number
of Compensation Shares of Compensation Shares being repurchased by
Employer.
b. Release of Compensation
Shares from Repurchase Option. The Compensation Shares shall
be released from the Repurchase Option as follows: One Thirty Sixth
(1/36) of the remaining Compensation Shares shall be released pro-rata per month
during the Thirty Six (36) months of the Period of Employment.
c. Release of Compensation
Shares from Repurchase Option in the Event of a Sale, Merger or Other
Acquisition of Employer or an Initial Public Offering (IPO) by
Employer. In the event of a merger, sale or other acquisition
of Employer or IPO by Employer prior to the completion of the Release of
Compensation Shares from Repurchase Option in Section 3.1.1(c) above, the
Compensation Shares shall be released from the Repurchase Option in
full.
d. Delivery of
Shares. Share certificates representing the Unreleased Shares
(as defined in Section 3.1.1(b)) shall be held by Employer for the benefit of
Employee. Shares of Compensation Shares which (i) have been released
from Employer's Repurchase Option and (ii) have been paid for in full shall be
delivered to Employee at Employee's written request.
e. Cancellation of Existing
Shares. The Company will cancel all of Employee's unvested
shares granted per the terms of the original Employment Agreement in exchange
for issuance of the shares referenced in Section 3.1 above.
If the foregoing correctly sets forth
our understanding concerning this matter, please sign where indicated below and
return to us a copy of same, whereupon this letter shall become a binding
agreement between us.
|
Sincerely,
|
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|
CommerceTel,
Corp., a Nevada corporation
|
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|
|
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||
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Name:
|
|||
|
Title:
|
|||
|
Accepted
and agreed to as of the date written above.
|
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Dennis
Becker, CEO
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