EMPLOYMENT AGREEMENT
This Employment Agreement, by and between MODAVOX, INC., a Delaware
corporation ("Modavox") and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇"), is effective as of
the date as of the date Certificate of Merger relating to the Merger of Kino
Interactive, LLC into Modavox is filed with and accepted by the Delaware
Secretary of State (the "Effective Date"). Modavox and ▇▇▇▇▇▇▇ are sometimes
referred to individually as the "Party" and collectively as the "Parties."
In consideration of the mutual benefits to be derived from this Agreement
and of the representations, warranties, conditions and promises hereinafter
contained, the Parties hereby agree as follows:
1. ENGAGEMENT.
1.1 EMPLOYMENT TERM. Modavox will employ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ will accept
such employment, for a period commencing on the Effective Date and
ending on December 31, 2008 (the "Term"), unless sooner terminated
under the circumstances set forth in Sections 6 and 8 below.
1.2 DUTIES AND RESPONSIBILITIES. During the Term and any extensions
thereof, Modavox will employ ▇▇▇▇▇▇▇ as "Consultant", reporting
directly to the Board of Directors. During the Term, ▇▇▇▇▇▇▇ will
render non-exclusive services to Modavox and devote his time, effort
and energies during business hours to his responsibilities for
Modavox, and faithfully and to the best of his ability discharge
those duties.
1.3 LOCATION. ▇▇▇▇▇▇▇'▇ services for Modavox will be based at Modavox's
headquarters in Phoenix, Arizona unless otherwise approved by the
Board of Directors.
2. COMPENSATION.
2.1 SALARY. Subject to the full and complete performance by ▇▇▇▇▇▇▇ of
all of ▇▇▇▇▇▇▇'▇ material obligations hereunder, during the term of
this Agreement, Modavox will pay to ▇▇▇▇▇▇▇ a base salary of fifty
thousand dollars ($50,000) per annum. ▇▇▇▇▇▇▇'▇ salary will be
payable in accordance with Modavox's customary payroll practices,
which in no event will be less frequently than on a monthly basis.
All salary payments made to ▇▇▇▇▇▇▇ will be subject to such
deductions, withholdings and limitations as will from time to time
be required by law, governmental regulations or orders. Salary and
benefits will be reviewed at least annually by the Board of
Directors for possible increases and/or bonuses, at the sole
discretion of the Board.
2.2 FRINGE BENEFITS. During the term of this Agreement:
(a) ▇▇▇▇▇▇▇ will be eligible to participate, in accordance with
their terms, in all medical and health plans, life insurance
and pension plans and such other employment benefits or
programs that Modavox maintains for its executive employees
from time to time (the "Plans").
(b) Until Modavox establishes a medical reimbursement plan,
Modavox will pay the premiums associated with any medical and
health insurance policy comparable to the policy currently in
effect covering ▇▇▇▇▇▇▇ and his dependents if ▇▇▇▇▇▇▇ and his
dependents are not able to participate in Modavox's medical
and health plans.
2.3 PARTICIPATION IN DEFERRED COMPENSATION AND STOCK OPTION PLANS.
▇▇▇▇▇▇▇ shall be entitled to participate in all executive bonus
plans and all employee qualified and non-qualified deferred
compensation plans or supplemental income plans or programs
maintained by Modavox, including any Section 401(k) plan adopted by
Modavox, according to the terms and conditions thereof. ▇▇▇▇▇▇▇
shall also be entitled to participate in all stock option and other
incentive plans, according to the terms and conditions thereof.
2.4 PAID VACATIONS. ▇▇▇▇▇▇▇ will be entitled to paid vacation in
accordance with Modavox's vacation policy (including, without
limitation, any restrictions on the amount of accrued time to be
paid at the expiration of the Term), but in no event less than four
(4) weeks per annum.
2.5 EXPENSES. In connection with ▇▇▇▇▇▇▇'▇ performance of ▇▇▇▇▇▇▇'▇
duties and obligations hereunder, ▇▇▇▇▇▇▇ will incur certain
ordinary and necessary expenses of a business character including,
without limitation, travel, meals and lodging. Modavox will
reimburse ▇▇▇▇▇▇▇ for all such reasonable business expenses upon
presentation of itemized statements therefor in accordance with
Modavox's standard policies. With respect to business travel,
▇▇▇▇▇▇▇ will be treated no less favorably with respect to expenses
than other Modavox executives.
3. RIGHT TO INSURE.
Modavox will have the right to secure in its own name, or otherwise, and
at its own expense, life, health, accident or other insurance covering
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ will have no right, title or interest in and to such
insurance. ▇▇▇▇▇▇▇ will assist Modavox in procuring such insurance by
submitting to examinations and by signing such applications and other
instruments as may be required by the insurance carriers to which
application is made for any such insurance.
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4. FIDUCIARY OBLIGATIONS. ▇▇▇▇▇▇▇ acknowledges that, as an officer of
Modavox, he will be bound to exercise his corporate powers as a fiduciary
for the common benefit of all of Modavox's stockholders, to wit:
4.1 DUTY OF CARE. ▇▇▇▇▇▇▇ will at all times perform his services
hereunder honestly and in good faith, with sound business judgment
using the level of care that a reasonably prudent person would use
under the given circumstances to make informed decisions on
Modavox's behalf.
4.2 DUTY OF LOYALTY. ▇▇▇▇▇▇▇ will at all times perform his services
hereunder without divided loyalties or obligations to any other
person including, without limitation, to any person who may become
an employer of ▇▇▇▇▇▇▇ following the end of the Term. Accordingly,
and without limiting the generality of the principle set forth in
the preceding sentence, ▇▇▇▇▇▇▇ will breach this Agreement if he
does the following:
(a) Without prior written notice and written consent of the Board
of Directors, ▇▇▇▇▇▇▇ accepts employment with any business,
individual, partnership, corporation, trust, joint venture,
unincorporated association or other entity or person other
than Modavox at any time during the Term.
(b) During the Term, ▇▇▇▇▇▇▇ will not become financially
interested in (other than as a stockholder owning less than
two percent (2%) of the outstanding capital stock of any
publicly traded corporation) or directly associated with any
other business or person engaged in a business that is
involved in any business that is competitive with Modavox's
business or activities without the prior written consent of
Modavox.
(c) During the Term, ▇▇▇▇▇▇▇ will not, for any reason whatsoever,
either alone or jointly with or on behalf of others, either
directly or indirectly:
(i) Divert or take away, or attempt to divert or take away,
any of Modavox's customers or clients;
(ii) Solicit the employment or engagement of, or otherwise
entice away from the employment of Modavox or any
affiliated entity, any person who is then employed by
Modavox or any such affiliated entity, whether or not
such person would commit any breach of said person's
contract by reason of leaving the service of Modavox or
any affiliated entity; or
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(iii) Solicit the employment or engagement of any person who
ceased being employed by Modavox or any affiliated
entity, within six (6) months of ▇▇▇▇▇▇▇'▇ solicitation.
5. EMPLOYEE PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT.
▇▇▇▇▇▇▇ acknowledges and confirms his obligations with Modavox under the
Employee Proprietary Information and Inventions Agreement executed by
Modavox and ▇▇▇▇▇▇▇ as of the date hereof (the "Nondisclosure Agreement").
6. SUSPENSION/TERMINATION.
6.1 TERMINATION WITHOUT CAUSE. Modavox will have the unilateral right,
at any time in the Modavox Board of Directors' sole and absolute
discretion, to terminate ▇▇▇▇▇▇▇'▇ employment by Modavox, without
cause, and for any reason or for no reason (Modavox's "Termination
Rights") upon written notice to ▇▇▇▇▇▇▇. Modavox's Termination
Rights are not limited or restricted by, and will supersede, any
policy of Modavox requiring or favoring continued employment of its
employees during satisfactory performance, any seniority system or
any procedure governing the manner in which Modavox's discretion is
to be exercised. No exercise by Modavox of its Termination Rights
will, under any circumstances, be deemed to constitute (i) a breach
by Modavox of any term of this Agreement, express or implied
(including without limitation a breach of any implied covenant of
good faith and fair dealing), (ii) a wrongful discharge of ▇▇▇▇▇▇▇
or a wrongful termination of ▇▇▇▇▇▇▇'▇ employment by Modavox, (iii)
a wrongful deprivation by Modavox of ▇▇▇▇▇▇▇'▇ office (or authority,
opportunities or other benefits relating thereto), or injury to
reputation, or (iv) the breach by Modavox of any other duty or
obligation, express or implied, which Modavox may owe to ▇▇▇▇▇▇▇
pursuant to any principle or provision of law (whether contract or
tort), unless Modavox's determination to terminate ▇▇▇▇▇▇▇ pursuant
to this Section 6.1 will constitute a violation of any applicable
federal, state or municipal statute, ordinance, rule or regulation,
respecting which the parties may not contract otherwise. If Modavox
elects to terminate ▇▇▇▇▇▇▇'▇ employment pursuant to this Section
6.1, Modavox will have no obligation or liability to ▇▇▇▇▇▇▇
pursuant to this Agreement except to pay, provided ▇▇▇▇▇▇▇ executes
and delivers to Modavox the Release and Waiver attached hereto as
Exhibit A, to ▇▇▇▇▇▇▇ the balance of the Salary due to ▇▇▇▇▇▇▇ under
Section 2.1 through the remainder of the Term, payable in accordance
with Modavox's normal payroll practices, and a severance payment
payable in one lump sum within thirty (30) days of ▇▇▇▇▇▇▇'▇
termination, in an amount equal to two times ▇▇▇▇▇▇▇'▇ most current
annual base salary. Upon exercise of such Termination Right, ▇▇▇▇▇▇▇
will have no further obligation to provide services to Modavox
hereunder and ▇▇▇▇▇▇▇ will be free to accept third-party employment.
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6.2 TERMINATION BY ▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇ will have the right at any time to
terminate his employment by Modavox, subject to delivery of a letter
of resignation providing a minimum of thirty (30) days notice. If
▇▇▇▇▇▇▇ terminates this Agreement as provided in this Section,
Modavox will be obligated to pay ▇▇▇▇▇▇▇ only the specified salary,
bonuses, fringe benefits, expenses and vacation accrued through the
date of termination.
6.3 DEATH. If ▇▇▇▇▇▇▇ dies during the Term, Modavox will be obligated to
pay to ▇▇▇▇▇▇▇'▇ estate twelve (12) months salary in severance
benefits, payable in twelve (12) monthly installments, unless
Modavox has obtained, on ▇▇▇▇▇▇▇'▇ behalf, a life insurance policy
naming a beneficiary designated by ▇▇▇▇▇▇▇, providing for at least
the same aggregate benefit.
6.4 DISABILITY.
(a) If ▇▇▇▇▇▇▇ is unable to perform fully his material obligations
hereunder due to a long-term disability (as defined in
Modavox's disability insurance policy), Modavox may terminate
this Agreement on or after the date that ▇▇▇▇▇▇▇ receives his
first, periodic long-term disability payment from Modavox's
insurance carrier.
(b) If Modavox does not have a long-term disability policy
covering ▇▇▇▇▇▇▇, and ▇▇▇▇▇▇▇ is prevented from performing
fully his material obligations hereunder by reason of the
occurrence of a long-term disability for a period of twelve
(12) consecutive weeks or sixteen (16) weeks in the aggregate
within any given six (6) calendar month period, Modavox may
terminate this Agreement by giving thirty (30) days prior
written notice to ▇▇▇▇▇▇▇ and by providing a total of twelve
(12) months salary in severance benefits following the date of
the termination notice, payable in twelve (12) monthly
installments. An independent physician reasonably selected by
Modavox will determine the existence of ▇▇▇▇▇▇▇'▇ long-term
disability.
6.5 TERMINATION FOR CAUSE. Modavox may terminate this Agreement
immediately upon written notice to ▇▇▇▇▇▇▇ for "Cause." For purposes
of this Agreement, "Cause" means: (i) ▇▇▇▇▇▇▇'▇ commission of a
willful act of fraud or dishonesty, the purpose or effect of which
materially and adversely affects Modavox; (ii) ▇▇▇▇▇▇▇'▇ conviction
of a felony (other than the first offense of driving under the
influence following the date hereof) or any admission thereof
(whether by plea of NOLO CONTENDERE or otherwise) or ▇▇▇▇▇▇▇'▇ being
determined by a governmental authority to have violated, or enjoined
from violating, any federal or state securities law or; (iii)
▇▇▇▇▇▇▇'▇ engaging in willful or reckless misconduct or gross
negligence in connection with any property or activity of Modavox;
or (iv) ▇▇▇▇▇▇▇'▇ breach of any material covenant to Modavox
relating to noncompetition, nonsolicitation, nondisclosure of
proprietary information or surrender of records, inventions or
patents.
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In the event of ▇▇▇▇▇▇▇'▇ termination for Cause, Modavox is
obligated to pay ▇▇▇▇▇▇▇ only the specified salary, bonuses, fringe
benefits, expenses and vacation accrued through the date of
termination.
7. EQUITABLE RELIEF FOR BREACH.
▇▇▇▇▇▇▇ acknowledges that a violation of any of the provisions of Sections
4 and 5 will cause Modavox irreparable injury and damage, the exact amount
of which may be impossible to ascertain and that, for such reason, among
others, Modavox will be entitled, in addition to the remedy set forth at
Section 9, to seek injunctive relief, both PENDENT LITE and permanently,
against ▇▇▇▇▇▇▇ to restrain any further violation of such provisions.
▇▇▇▇▇▇▇ hereby (i) consents to any initiation by Modavox in a court of
competent jurisdiction of any action to enjoin immediately the breach of
Sections 4 and 5, and (ii) hereby releases Modavox from the requirement of
posting any bond in connection with temporary or interlocutory injunctive
relief, to the extent permitted by law. This provision will not, however,
be construed as a waiver of any other rights and remedies Modavox may have
against ▇▇▇▇▇▇▇, including, but not limited to, the recovery for damages.
8. BREACH BY MODAVOX.
If Modavox breaches this Agreement, ▇▇▇▇▇▇▇ will give Modavox written
notice thereof. If Modavox does not cure such breach within thirty (30)
days of receiving written notice thereof, ▇▇▇▇▇▇▇'▇ remedy will be limited
to compulsory arbitration as set forth at Section 9; provided, however,
the foregoing will not be deemed a waiver of ▇▇▇▇▇▇▇'▇ statutory or common
law right to discontinue rendering services hereunder in the event of a
material breach by Modavox of this Agreement.
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9. COMPULSORY ARBITRATION.
Except as provided in Section 7, any controversy, claim and/or dispute
arising out of or relating to this Agreement or the breach hereof or
subject matter hereof (including any action in tort) will be finally and
fully settled by arbitration in Maricopa County, Arizona in accordance
with the then-existing Commercial Arbitration Rules of the American
Arbitration Association (the "AAA"), and judgment upon the award rendered
by the arbitrators may be entered in any court having applicable
jurisdiction. Written notice of demand for arbitration will be given to
the other parties and to the AAA within six (6) months after the
controversy, claim or dispute has arisen or be barred, and in no event
after the date when the institution of court proceedings based on such
dispute would be barred by the applicable statute of limitations.
Controversies, claims and/or disputes will be resolved by one arbitrator
selected by the mutual agreement of the parties or, failing that agreement
within forty-five (45) days after written notice demanding arbitration, by
the AAA. There will be limited discovery prior to the arbitration hearing
as follows: (i) exchange of witness lists and copies of documentary
evidence and documents related to or arising out of the issues to be
arbitrated, and (ii) depositions of all Party witnesses. Depositions will
be conducted in accordance with the rules or code of Civil Procedure of
the jurisdiction in which the arbitration is conducted, and a court
reporter will record all hearings, with such record constituting the
official transcript of such proceedings. All decisions of the arbitrator
will be in writing, and the arbitrator will provide reasons for the
decision. Each party shall bear its own respective attorney's fees and
costs in accordance with any dispute or arbitration.
10. MISCELLANEOUS.
10.1 OBLIGATIONS TO OTHER COMPANIES. ▇▇▇▇▇▇▇ certifies that his
employment with Modavox will not breach any existing agreement or
covenant that ▇▇▇▇▇▇▇ has signed with any other person or entity, or
violate any legal duty that ▇▇▇▇▇▇▇ owes to such other person or
entity. ▇▇▇▇▇▇▇ will not disclose to Modavox, or use on Modavox's
behalf, any trade secrets or proprietary information belonging to
any of ▇▇▇▇▇▇▇'▇ prior employers or any other person or entity.
10.2 ASSIGNMENT. This Agreement will not be assignable, in whole or in
part, by either party without the written consent of the other
party, except that Modavox may, without the consent of ▇▇▇▇▇▇▇,
assign this Agreement upon the consummation of (i) a merger or
consolidation of Modavox with any other corporation or entity or any
other form of business combination pursuant to which the outstanding
stock of Modavox is exchanged for cash, securities or other property
paid, issued or caused to be issued by the surviving or acquiring
corporation or entity; or (ii) a sale, transfer or lease by Modavox
of all, or substantially all, of Modavox's assets.
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10.3 NOTICES. All notices and other communications required or permitted
under this Agreement will be delivered to the parties at the address
set forth below their respective signature blocks, or at such other
address that they hereafter designate by notice to all other parties
in accordance with this Section. All notices and communications will
be deemed to be received in accordance with the following: (i) in
the case of personal delivery, on the date of such delivery; (ii) in
the case of facsimile transmission, on the date on which the sender
receives confirmation by facsimile transmission that such notice was
received by the addressee, provided that a copy of such transmission
is additionally sent by mail as set forth in (iv) below; (iii) in
the case of overnight air courier, on the second business day
following the day sent, with receipt confirmed by the courier; and
(iv) in the case of mailing by first class certified mail, postage
prepaid, return receipt requested, on the fifth business day
following such mailing.
10.4 GOVERNING LAW. This Agreement will be deemed to have been executed
in the State of Arizona and will be governed and construed as to
both substantive and procedural matters in accordance with the laws
of the State of Arizona, but excepting (i) any State of Arizona rule
which would result in judicial failure to enforce the arbitration
provisions of Section 9 hereof or any portion thereof and (ii) any
State of Arizona rule which would result in the application of the
law of a jurisdiction other than the State of Arizona. Any dispute
arising from this Agreement must be filed in Maricopa County,
Arizona.
10.5 COMPLETE AGREEMENT. This Agreement, along with the ▇▇▇▇▇▇▇
Promissory Note and the Nondisclosure Agreement, contains the entire
agreement of the parties relating to the subject matter hereof and
supersedes all prior agreements and understandings, whether written
or oral, with respect to such subject matter, and the Parties have
made no agreements, representations or warranties relating to the
subject matter of this Agreement which are not set forth herein. If
a conflict is determined to exist among any of the aforementioned
agreements, the terms of this Agreement will control.
10.6 AMENDMENT. This Agreement may not be amended, modified, superseded,
canceled or terminated, and any of the matters, covenants,
representations, warranties or conditions hereof may not be waived,
except by written instrument executed by the Parties or, in the case
of a waiver, by the Party to be charged with such waiver.
10.7 COUNTERPARTS. This Agreement may be executed by any one or more of
the Parties in any number of counterparts, each of which will be
deemed to be an original, but all such counterparts will together
constitute one and the same instrument.
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10.8 WAIVER. The failure of a Party to insist upon strict adherence to
any term, condition or other provision of this Agreement will not be
considered a waiver or deprive that Party of the right thereafter to
insist upon strict adherence to that term or any other term,
condition or other provision of this Agreement.
10.9 HEADINGS. The headings of this Agreement are solely for convenience
of reference and will not affect its interpretation.
10.10 INDEMNITY. Modavox will indemnify and hold harmless ▇▇▇▇▇▇▇ from and
against any and all liability, costs, damages and expenses
(including reasonable attorneys' fees and court costs) which ▇▇▇▇▇▇▇
may sustain or suffer by reason of any third Party claim which is
not caused by a breach by ▇▇▇▇▇▇▇ hereunder.
10.11 SEVERABILITY. If any one clause or part of this Agreement is deemed
invalid, unenforceable or illegal by the arbitrators or court of
competent jurisdiction, then it is severed from this Agreement and
the rest of this Agreement remains in full force and effect. ▇▇▇▇▇▇▇
acknowledges the uncertainty of the law in this respect and
expressly stipulates that this Agreement be given the construction
which renders its provisions valid and enforceable to the maximum
extent possible under applicable law.
10.12 FURTHER ASSURANCES. The Parties will sign such other instruments,
cause such meetings to be held, resolutions passed and by-laws
enacted, exercise their vote and influence, do and perform and cause
to be done and performed such further and other acts and things as
may be necessary or desirable in order to give full effect to this
Agreement.
10.13 ▇▇▇▇▇▇▇ ACKNOWLEDGES THAT HE HAS HAD THE OPPORTUNITY TO CONSULT WITH
THE ADVISOR OF HIS CHOICE AND THAT HE HAS FREELY AND VOLUNTARILY
ENTERED INTO THIS AGREEMENT. MODAVOX ACKNOWLEDGES THAT ▇▇▇▇▇▇▇ IS A
LICENSED ATTORNEY, THAT ▇▇▇▇▇▇▇ DRAFTED THIS AGREEMENT WITH
MODAVOX'S FULL KNOWLEDGE AND CONSENT AND THAT MODAVOX HAS HAD THE
OPPORTUNITY TO CONSULT WITH THE ADVISOR OF ITS CHOICE AND THAT IT
HAS FREELY AND VOLUNTARILY ENTERED INTO THIS AGREEMENT.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
Modavox:
MODAVOX MEDIA GROUP, INC.
-----------------------------------
By: ▇▇▇▇▇ ▇. ▇▇▇
Chief Executive Officer
▇▇▇▇▇▇▇:
-----------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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NONDISCLOSURE AGREEMENT
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February 28, 2006
Modavox Media Group, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
RE: Employee Proprietary Information And Inventions Agreement
To Whom It May Concern:
The following confirms my Agreement and understanding with Modavox Media Group,
Inc., a Delaware corporation, which is a material part of the consideration for
my employment by Modavox. Capitalized terms not otherwise defined herein have
the meaning set forth at the end of this Agreement.
1. Modavox possesses and will possess Proprietary Information (as hereinafter
defined) and Documentation (as hereinafter defined) which is important to
its Business (as hereinafter defined).
2. My employment creates a relationship of confidence and trust between
Modavox and me with respect to Proprietary Information (i) applicable to
the Business; or (ii) applicable to the business of any customer of
Modavox; or (iii) which Modavox is under a contractual obligation to keep
confidential which may be made known to me by Modavox or by any customer
of Modavox, or learned by me during the period of my employment.
3. The Proprietary Information, whether now or hereafter furnished to me in
whole or in part, is confidential. Modavox's business and prospects could
be damaged if the Proprietary Information is disclosed to third parties
without Modavox's consent.
4. As a condition to sharing with me, whether in writing or orally,
Proprietary Information, in consideration of my employment by Modavox and
the compensation received by me from Modavox from time to time, I hereby
acknowledge and agree as follows:
(a) All Proprietary Information and all intellectual property rights
associated therewith ("Rights") are the sole property of Modavox. I
assign to Modavox any Rights I may have or acquire in such
Proprietary Information. At all times, both during my employment by
Modavox and after its termination, I will keep in confidence and
trust and will not use or disclose (or permit the use or disclosure
of) any Proprietary Information or anything relating to it for a
purpose detrimental to the Business and without the prior written
consent of Modavox except as may be necessary and appropriate in the
ordinary course of performing my duties to Modavox.
(b) All Documentation constitutes the sole property of Modavox. During
my employment by Modavox, I will not remove any Documentation from
the business premises of Modavox or deliver any Documentation to any
person or entity outside Modavox for a purpose detrimental to the
Business and except as I am required to do in connection with
performing the duties of my employment. Immediately upon the
termination of my employment by me or by Modavox for any reason, or
during my employment if so requested by Modavox, I will return all
Documentation, equipment and other physical property, or any
reproduction of such property, excepting only (i) my personal copies
of records relating to my compensation; (ii) my personal copies of
any materials previously distributed generally to stockholders of
Modavox; and (iii) my copy of this Agreement.
(c) I will promptly disclose in writing to my immediate supervisor or to
any persons designated by Modavox, all Inventions (as hereinafter
defined) related to the Business made or conceived or reduced to
practice or developed by me, either alone or jointly with others,
during the term of my employment. I will not disclose Inventions
covered by this Agreement to any person outside Modavox unless I am
requested to do so by its duly authorized officers. All Inventions
related to Modavox's Business which I make, conceive, reduce to
practice or develop (in whole or in part, either alone or jointly
with others) during my employment belong solely to Modavox to the
maximum extent permitted by applicable law, and I assign such
Inventions and all Rights therein to Modavox and Modavox is the sole
owner of all Rights in connection therewith. This Section 3(c) does
not apply to inventions which qualify for protection under section
2870 of the Arizona Labor Code, but I bear the full burden of
proving to Modavox that any such invention qualifies fully under
Section 2870.
(d) I will perform, during and after my employment, all reasonable acts
deemed necessary or desirable by Modavox to permit and assist it, at
Modavox's expense, in evidencing, perfecting, obtaining,
maintaining, defending and enforcing Rights and/or my assignment
with respect to such Inventions in any and all countries. Such acts
may include, but are not limited to, execution of documents and
assistance or cooperation in legal proceedings. I hereby irrevocably
designate and appoint Modavox and its duly authorized officers and
agents, as my agents and attorneys-in-fact to act for and in my
behalf and instead of me, to sign and file any documents and to do
all other lawfully permitted acts to further the above purposes with
the same legal force and effect as if signed by me.
2
(e) I have attached hereto, as Attachment A, a complete list of all
existing Inventions to which I claim ownership as of the date of
this Agreement which are related to the Business and that I desire
to specifically clarify are not subject to this Agreement.
(f) My performance of all the terms of this Agreement will not breach
any Agreement to keep in confidence proprietary information acquired
by me in confidence or in trust prior to my employment by Modavox. I
have not entered into, nor will I enter into, any Agreement either
written or oral in conflict herewith or in conflict with my
employment with Modavox.
(g) My obligation of secrecy and confidentiality with respect to
Proprietary Information which constitutes trade secrets under the
Uniform Trade Secrets Act (or other similar applicable law) will run
for as long as such information remains a trade secret. My
obligation of confidentiality with respect to Proprietary
Information that is not covered under the Uniform Trade Secrets Act
(or other similar applicable law), will run for three (3) years from
the date my employment by Modavox ceases.
(h) This Agreement is not an employment contract and, as an employee of
Modavox, I have obligations to Modavox which are not set forth in
this Agreement.
(i) Any dispute in the meaning, effect or validity of this Agreement
will be resolved in accordance with the laws of the State of Arizona
without regard to the conflict of laws provisions thereof.
(j) If one or more provisions of this Agreement are held to be illegal
or unenforceable under applicable Arizona law, such illegal or
unenforceable portion(s) will be limited or excluded from this
Agreement to the minimum extent required so that this Agreement will
otherwise remain in full force and effect and enforceable in
accordance with its terms.
(k) Wrongful disclosure or use of Proprietary Information in
contravention of the provisions of this Agreement will give rise to
irreparable injuries not adequately compensable in damages. If
preliminary injunctive relief to maintain the status quo is
required, Modavox may seek such relief from any court of competent
jurisdiction. I am bound by any and all orders rendered by such
court.
(l) No failure or delay in exercising any right, power or privilege
hereunder will operate as a waiver thereof nor will any single or
partial exercise thereof preclude any other or further exercise
thereof or the exercise of any right, power or privilege.
3
(m) No modification of this Agreement is valid unless made in writing
and signed by me and a duly authorized officer of Modavox.
(n) This Agreement will survive termination of my employment, regardless
of the circumstances of such termination.
(o) This Agreement is effective as of the first day of my employment by
Modavox.
(p) This Agreement is binding upon my heirs, executors, administrators
or other legal representatives.
(q) Notwithstanding the foregoing, nothing contained herein will
prohibit me from disclosing to anyone the amount of my wages.
(r) This Agreement constitutes the full, complete and exclusive
Agreement between Modavox and me with regard to this Agreement's
subject matter. These Agreements supersede any previous Agreements
or representations, whether oral or written, express or implied
between Modavox and me with respect to their subject matter.
(s) The following terms have the following meanings:
(i) "Business" means the actual business of Modavox on today's
date, as well as any other business that Modavox acquires,
develops or initiates during the term of this Agreement,
including each of its current and future subsidiaries,
affiliates, business units and divisions.
(ii) "Documentation" means tangible paper or electronic media that
contain or embody Proprietary Information or any other
information concerning the business, operations or plans of
Modavox, whether I or others have prepared such documents. By
way of illustration but not limitation, Documentation includes
blueprints, drawings, photographs, charts, graphs, notebooks,
customer lists, computer disks, tapes or printouts, sound
recordings and other printed, typewritten or handwritten
documents, as well as samples, prototypes, models, products
and the like.
(iii) "Inventions" means all data, discoveries, designs,
developments, formulae, ideas, improvements, inventions,
know-how, processes, programs, and techniques, whether or not
patentable or registerable under copyright, trademark or
similar statutes, and all designs, trademarks and
copyrightable works that I made or conceived or reduced to
practice or learned, either alone or jointly with others,
during the period of my employment which (A) are related or
useful in Modavox's business, research, design, development,
experimental production, financing, manufacturing, licensing,
distribution or marketing activity, or (B) result from tasks
Modavox assigned me, or (C) result from use of premises or
equipment owned, leased or contracted for by Modavox.
4
(iv) "Proprietary Information" means information from which Modavox
might derive economic value, actual or potential, from such
information not being generally known to, and not being
readily ascertainable by proper means by, other persons who
can obtain economic value from its disclosure or use, and
which is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy. By way of illustration
but not limitation, Proprietary Information includes: (A)
inventions, confidential knowledge, trade secrets, ideas,
data, programs, works of authorship, know-how, improvements,
discoveries, designs, techniques and sensitive information
Modavox receives from its customers or receives from a third
party under obligation to keep confidential; (B) technical
information relating to Modavox's existing and future products
and services, including, where appropriate and without
limitation, software, firmware, information, patent
disclosures, patent applications, development or experimental
work, formulae, engineering or test data, models, techniques,
processes and apparatus relating to the same disclosed by
Modavox to me or obtained by me through observation or
examination of information or developments; (C) confidential
marketing information (including without limitation marketing
strategies, customer names and requirements and product and
services, prices, margins and costs); (D) confidential future
product plans; (E) confidential financial information provided
to me by Modavox; (F) personnel information (including without
limitation employee compensation); (G) merger and acquisition
strategies (including without limitation target lists); and
(H) other confidential business information.
5
5. I HAVE READ THIS AGREEMENT CAREFULLY AND I UNDERSTAND AND ACCEPT THE
OBLIGATIONS WHICH IT IMPOSES UPON ME WITHOUT RESERVATION. NO PROMISES OR
REPRESENTATIONS HAVE BEEN MADE TO ME TO INDUCE ME TO SIGN THIS AGREEMENT.
I SIGN THIS AGREEMENT VOLUNTARILY AND FREELY, IN DUPLICATE, WITH THE
UNDERSTANDING THAT ONE COUNTERPART WILL BE RETAINED BY MODAVOX AND THE
OTHER COUNTERPART WILL BE RETAINED BY ME.
Dated: February 28, 2006
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Accepted and Agreed to:
MODAVOX MEDIA GROUP, INC.
By:
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇
Chief Executive Officer
6
ATTACHMENT A
The following is a complete list of Inventions relevant to the subject
matter of my employment by Modavox Media Group, Inc. relating to Modavox's
Business that have been made or conceived or first reduced to practice by me
alone or jointly with others prior to my employment by Modavox that I desire to
clarify are not subject to Modavox's Proprietary Information and Inventions
Agreement.
List of Inventions:
None.
I propose to bring to my employment the following materials and documents of a
former employer:
None.