EXHIBIT 10.11
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EMPLOYMENT AGREEMENT
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EFFECTIVE: April 21, 2005
by and between
(1) CATCHER, INC.
- and -
(2) ▇▇▇ ▇▇▇▇▇▇▇▇
THIS EMPLOYMENT AGREEMENT (this "Agreement") is executed this
21st day of April, 2005 by and between Catcher, Inc., a Delaware corporation
with principal offices at 1165 Via ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Catcher" or
the "Company") and ▇▇▇ ▇▇▇▇▇▇▇▇, an individual residing at
__________________________________ (the "Employee"). The Company and the
Employee are sometimes referred to herein as the "Parties."
WHEREAS, the Company is contemplating, among other
transactions and events, a private placement of its equity securities to certain
private investors (the "Private Investment") followed immediately by an
acquisition of all of the capital stock of the Company by a public "shell"
corporation ("Pubco") pursuant to which the capital stock of the Company shall
be exchanged for the capital stock of Pubco (the "Public Transaction" and
together with the Private Investment, the "Transactions"); and
WHEREAS, the Company desires to employ Employee and Employee
desires to be employed upon the terms and subject to the conditions of this
Agreement.
NOW THEREFORE, for good and valuable consideration given by
each party hereto to the other, the receipt and sufficiency of which is hereby
acknowledged, the Parties agree that the Company shall employ the Employee and
the Employee shall be employed by the Company upon the following terms and
conditions:
1. COMMENCEMENT AND TERM; CONDITION.
(a) COMMENCEMENT AND TERM. This Agreement shall commence
simultaneously with, and effective as of, the date of the consummation of the
Transactions (the "Effective Date") and unless sooner terminated pursuant to
paragraph 4, shall continue for a period of three (3) years thereafter (the
"Initial Term"). The Initial Term shall automatically renew for additional
three-year periods (each a "Renewal Term") unless sooner terminated pursuant to
paragraph 4, unless a written notice of non-renewal is provided to either Party
by the other no earlier than 90 days prior to the end of the Initial Term or any
Renewal Term and no later than 30 days prior to the expiration of the Initial
Term or any Renewal Term. The Initial Term, together with each and every Renewal
Term is hereinafter referred to as the "Term."
(b) CONDITION. The parties to the Transactions contemplate
that this Agreement shall have been executed and delivered prior to and as a
condition of, the parties obligation to close the Transactions. However, no
Party shall have any obligation hereunder, unless the Transactions are closed
and all documents to be executed and delivered pursuant to the terms of the
Transactions are executed and delivered.
2. TITLE AND DUTIES. The title, scope of employment and the duties of
the Employee shall be as follows:
(a) TITLE. The Employee shall serve the Company on a full-time
basis with the title of Chairman and Chief Technology Officer. The Employee will
report to the Board of Directors of the Company (the "Board").
(b) SCOPE OF EMPLOYMENT AND DUTIES. As Chairman and Chief
Technology Officer, the Employee shall (i) oversee the Company's business and
operations, subject to the direction and supervision of the Board, (ii) initiate
and manage the development of the Company's products, including oversight of the
development of the Company's intellectual property; and (ii) perform such other
services in respect of the Company's business and operations as are customarily
performed by a Chairman and
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Chief Technology Officer, or are ancillary to any of the aforementioned duties,
or may be agreed by the Employee and the Board.
(c) OTHER ACTIVITIES. The Employee shall devote his entire
business-day attention and energies to his employment with the Company. The
Employee may engage in civic, philanthropic or community service activities, so
long as such activities do not interfere with the Employee's ability to comply
with the terms and conditions of this Agreement and are not otherwise in
conflict with the policies or interests of the Company; PROVIDED THAT, the
Employee shall obtain the consent of the Board before engaging in such
activities that require time off during the normal business day.
(d) PRINCIPAL PLACE OF BUSINESS. The Employee shall perform
his duties principally from the Company's principal offices in San Marcos,
California or at such other place as the Company may designate from time to
time.
3. COMPENSATION AND BENEFITS. In full consideration for entering into
this Agreement and for the Employee's services during the Term, the Employee
shall receive the following compensation and benefits (together, the
"Compensation"):
(a) BASE SALARY. The Employee shall receive a base salary
computed at the rate of $216,000 per calendar year (such amount, as may be
increased by the Company, shall be referred to as "Base Salary"). Base Salary
shall be paid in equal installments in accordance with the Company's payroll
policy. The Employee's Base Salary shall be reviewed annually by the Board with
a view to increasing the Base Salary if such increase is merited or warranted by
the competitive environment and, in the discretion of the Board, is in the best
interests of the Company and its shareholders.
(b) BONUS. Employee shall be eligible to participate in any
incentive bonus program the Company may adopt for its executive employees,
provided that, in no event will such incentive bonus program provide for a bonus
of less than 50% of Employee's Base Salary upon achievement of certain goals
agreed between the Company and the Board.
(c) SUBSCRIPTION. Employee shall be entitled to subscribe for
shares of the Company's preferred stock pursuant to the terms and subject to the
conditions set forth in the Subscription Agreement attached at EXHIBIT A.
(d) STOCK OPTIONS. Employee shall be eligible to participate
in any incentive stock option plan that the Company may adopt for its executive
employees, subject to the terms of such plan and the execution and delivery of
such agreements and other documents required by the terms of such plan
(e) EXECUTIVE BENEFITS. In addition to the remuneration
described in paragraphs 3(a) through paragraph 3(d), above, and subject to
paragraph 3(i), below, the Employee shall participate in all of the employee
benefit plans and arrangements as may from time to time be made available by the
Company to or for the Company's executive employees.
(f) EXPENSE REIMBURSEMENT. The Company shall reimburse the
Employee for reasonable and necessary business travel and other business
expenses incurred in connection with the Employee's services under this
Agreement; PROVIDED THAT, such expenses are made, verified and submitted to the
Company for reimbursement in accordance with Company's expense reimbursement
policies.
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(g) VACATION. Employee shall be entitled to fifteen (15)
business days of vacation annually to be taken at such time or times as the
Employee and the Company may agree during which time, all of Employees
compensation and benefits shall continue.
(h) WITHHOLDING AND SETOFF. The Company shall withhold from
Compensation all federal, state and local taxes or other governmental
obligations which Company is compelled to deduct by law with respect to the
Employee. The Company may deduct from Compensation such other amounts which the
Employee may owe the Company in connection with this Agreement or the Employee's
employment; PROVIDED THAT, the Employee has explicitly authorized such deduction
in writing in advance in each instance or has agreed to participate in a benefit
plan requiring a contribution from the Employee.
(i) PLANS GOVERN. Each and every benefit described in this
paragraph 3 shall be subject to the terms and conditions of the applicable plan,
scheme and/or insurance document (including with respect to waiting periods and
other limitations) underlying such benefit, each of which plan, scheme and/or
insurance document has been made available to the Employee for inspection at the
Company's principal offices. Employee hereby acknowledges that prior to the
Effective Date, the Employee has had access to, and the opportunity to examine,
all such plans, schemes and documents and to obtain answers to all of the
Employee's questions with respect thereto. The implementation of all benefits
applicable to the Employee during the Term is subject to the policies and
procedures established and issued by Catcher from time to time.
4. TERMINATION OF AGREEMENT. This Agreement shall terminate only upon
the happening of any of the following termination events:
(a) COMPANY'S TERMINATION FOR CAUSE. The Company may terminate
this Agreement and the Employee's employment hereunder solely upon (i) the
Employee's conviction of a felony relating to the business of the Company, (ii)
a final determination by a court of competent jurisdiction that Employee has
breached a fiduciary duty to the Company, its successors or assigns, or (iii)
the Employee's refusal to effect a lawful order of the Board ("Cause").
(b) EMPLOYEE'S TERMINATION FOR GOOD REASON. Employee may
terminate this Agreement and the Employee's employment hereunder immediately
upon notice to the Company for "Good Reason." For purposes of this Agreement,
the term "Good Reason" shall mean (i) the Company's material breach in the
performance or non-performance of any of the Company's obligations or duties
under this Agreement, PROVIDED THAT, the Company has first been advised in
writing by the Employee of the material breach, and has been given a reasonable
opportunity (not to exceed sixty (60) days) to cure such breach if such breach
is capable of cure, (ii) the failure of the Company to make any of the payments
set forth in paragraph 3, above, or (iii) the diminution of the Employee's
title, reporting relationship or the responsibilities described herein.
(c) EMPLOYEE'S VOLUNTARY RESIGNATION. The Employee may
terminate this Agreement without Good Reason.
(d) AUTOMATIC TERMINATION UPON DEATH. This Agreement shall
terminate automatically upon the death of the Employee.
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5. RIGHTS AND DUTIES UPON TERMINATION.
(a) EXCLUSIVE RIGHTS. Subject to paragraph 5(b), upon
termination of this Agreement and the Employee's employment hereunder, the
Company shall have no further obligation or liability to the Employee under this
Agreement or otherwise, EXCEPT THAT
(i) if the Employee terminates this Agreement other
than for Good Reason or the Company terminates this Agreement for Cause or the
Agreement is terminated pursuant to paragraph 4(c), above, the Employee (or the
Employee's estate, as the case may be) shall be entitled to receive: (a) all
salary and monetary benefits to which the Employee is entitled under this
Agreement up to and including the effective date of such termination; and (b)
all other benefits to which the Employee is entitled as of the date of such
termination under any Employee benefit plan or arrangement maintained by the
Company in which the Employee participates, which benefit shall be determined
and paid in accordance with this Agreement and such plans or arrangements;
(ii) if the Employee terminates this Agreement for
Good Reason or the Company terminates this Agreement other than for Cause, the
Employee shall be entitled to receive (a) all salary and monetary benefits to
which the Employee is entitled under this Agreement up to and including the
effective date of such termination; (b) all other benefits to which the Employee
is entitled as of the date of such termination under any Employee benefit plan
or arrangement maintained by the Company in which the Employee participates,
which benefit shall be determined and paid in accordance with this Agreement and
such plans or arrangements; (c) the greater of (x) Employee's Base Salary and
any bonus, options or other remuneration that the Employee would have been
entitled to under paragraph 3 for a period of two (2) years following the date
of termination and (y) the Employee's Base Salary and any bonus, options or
other remuneration that the Employee would have been entitled to for the
remainder of the Term had this Agreement not been terminated (and without regard
to any requirement that the Employee remain employed to receive any such bonus,
options or other remuneration); and (d) in consideration of Employee's
development of valuable Intellectual Property utilized by the Company, a running
royalty of one percent (1%) of the Company's gross revenues during each of the
three (3) years following such expiration or termination of the Agreement, which
Royalty shall be paid quarterly by the Company within thirty (30) days following
the end of each quarter (the "Royalty"). Each quarterly Royalty payment shall be
accompanied by a statement indicating the basis for the calculation of the
Royalty payment for such quarter. Employee and Employee's agents shall have the
right to review the books and records of the Company upon his written request to
confirm compliance by the Company in connection with the calculation and payment
of the Royalty; and
(iii) if the Agreement expires following the
Company's notice to Employee that it will not renew this Agreement following the
Initial Term or any Renewal Term (the "Notice"), the Employee shall be entitled
to receive (a) all salary and monetary benefits to which the Employee is
entitled under this Agreement up to and including the Employee's last day of
employment; (b) all other benefits to which the Employee is entitled as of the
last day of Employment under any Employee benefit plan or arrangement maintained
by the Company in which the Employee participates, which benefit shall be
determined and paid in accordance with this Agreement and such plans or
arrangements; (c) the Employee's Base Salary and any bonus, options or other
remuneration that the Employee would have been entitled to under paragraph 3 for
a period of two (2) years following the expiration of this Agreement (and
without regard to any requirement that the Employee remain employed to receive
any such bonus, options or other remuneration) and (d) if the Employee provides
his written election to the Company within 10 business days following the
Notice, the Royalty payable as set forth in paragraph 5(a)(ii), above, provided
however that within such ten day period, the Employee shall tender all capital
stock of Pubco owned by him to Pubco for Pubco to purchase at par value.
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(b) DAMAGE OFFSET; DEBTS. To the extent permitted by
applicable law, all amounts due or to become due to the Employee under this
Agreement shall be subject to offset or deduction for amounts which the Employee
owes to the Company. The Employee shall immediately repay all outstanding debts
or loans to the Company or any affiliated company and the Company is hereby
authorized to deduct from any wages or other sums owed to the Employee by the
Company or such affiliate the amount of such debts or loans in repayment of all
or any part thereof.
(c) RETURN OF PROPERTY. Upon the termination of this
Agreement, and the Employee's employment hereunder, the Employee will, or in the
event of the Employee's death the Employee's estate will, immediately return to
the Company all written confidential and proprietary information referred to in
paragraph 6(a) as well as all other property loaned or consigned to the Employee
by the Company.
(d) EMPLOYEE RESIGNATION. If applicable, upon termination of
this Agreement, the Employee shall immediately resign as an officer and, if the
case may be, director of the Company.
6. INTELLECTUAL PROPERTY, CONFIDENTIAL INFORMATION AND COMPETITION BY
THE EMPLOYEE.
(a) INTELLECTUAL PROPERTY AND CONFIDENTIAL INFORMATION. The
terms and conditions of the Employee Intellectual Property and Confidential
Information Agreement, including its Schedules appropriately completed
(together, the "IP Agreement"), are attached as EXHIBIT B and are hereby
incorporated into this Agreement as if written herein verbatim.
(b) SPECIAL EMPLOYEE COVENANTS. Because the Employee will have
access to and possesses Confidential Information, as defined in the IP
Agreement, including detailed customer lists and information relating to the
operations and business requirements of those customers, the Employee is willing
to enter into the covenants described in this paragraph 6(b) in order to provide
the Company with what the Employee considers to be reasonable protection of the
Company's interests. For the period from the Effective Date to and, if this
Agreement is terminated by the Employee without Good Reason, until the first
anniversary of the date of Employee's termination from employment, the Employee
shall not, directly or indirectly:
(1) enter into or engage in the manufacture, sale or
distribution of, or assist in any way any business competitive with the business
of the Company in the manufacture, sale or distribution of, Competitive Products
(as defined below) either on the Employee's own account, or as a partner or
joint venturer, or as an employee, agent, consultant or salesman for any
individual or other entity, or as an officer, director, or stockholder of a
corporation, or as a lender, or otherwise, within the United States of America
or within any foreign country in which the Company actually competes or in which
the Company has during the Term adopted plans to compete, of which Employee had
actual knowledge; PROVIDED THAT, the ownership, in the aggregate, of less than
1% of the outstanding shares of capital stock of any corporation with one or
more classes of its capital stock listed on a national securities exchange or
publicly traded in the over-the-counter market shall not, by itself, constitute
a violation of this paragraph 6(b)(1). For purposes of this paragraph 6(b)(1),
the term "Competitive Products" shall mean any and all products that are the
same as, or which are competitive with, products that were under development,
manufactured or sold by the Company during the two-year period immediately
preceding the termination of the Employee's employment.
(2) employ, solicit for employment or cause or assist
any person or other entity to employ or solicit for employment, any of the
present or future employees or agents of the Company, or (ii) solicit or induce
the customers of the Company to withdraw, curtail or cancel its business with
the Company.
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Nothing in this paragraph 6(b) shall be deemed (i) to limit, or to relieve the
Employee from, legal duties owed by the Employee to the Company after
termination of employment, including fiduciary duties, duties of loyalty, or
other requirements of law applicable to the Employee as a result of the
Employee's employment, directorship, officership or otherwise, or (ii) to limit,
or to relieve the Employee from, the Employee's obligations under this Agreement
or under law relating to Intellectual Property of the Company.
(c) COVENANTS SEVERABLE. The covenants contained in paragraph
6(b) are intended to be separate and severable and enforceable as such.
(d) COVENANTS REASONABLE. The parties agree and acknowledge
that the duration, scope and geographic area of the covenants described in
paragraph 6(b) are fair, reasonable and necessary in order to protect the
goodwill and other legitimate interests of the Company, that adequate
consideration has been provided to the Employee by and under this Agreement for
such obligations and that such obligations do not prevent the Employee from
earning a livelihood. If, however, for any reason any court of competent
jurisdiction (the "Court") determines that the provisions of paragraph 6(b)
pertaining to duration, scope and/or geographic area are too broad or otherwise
unreasonable (together, such provisions being hereinafter referred to as
"Restrictions"), such Restrictions shall be interpreted, modified or rewritten
to include the maximum Restrictions as are valid and enforceable under
applicable law. The Court is hereby requested and authorized by the parties to
revise the Restrictions to include the maximum Restrictions allowed under
applicable law and the Restrictions as so revised shall be binding upon the
Employee. If the Court determines that the Restrictions should not be enforced
for want of consideration, the Company may, at its option, provide the Base
Salary to the Employee for the period from the date of the Employee's
termination until the first anniversary of the Employee's termination from
employment to support the Restrictions.
(e) SPECIFIC PERFORMANCE. In the event of breach of any of the
Employee's obligations under this paragraph 6, the Company shall have the right
to have such obligation specifically enforced by a court of competent
jurisdiction, including, without limitation, the right to entry of restraining
orders and injunctions, whether preliminary, mandatory, temporary, or permanent,
against a violation, threatened or actual, and whether or not continuing, of
such obligation, without the necessity of showing any particular injury or
damage, and without the posting of any bond or other security, it being
acknowledged and agreed that any such breach or threatened breach would cause
immediate and irreparable injury to the Company and that money damages alone
would not provide an adequate remedy. The reasonable attorneys' fees and court
costs of the prevailing party in any such proceeding shall be borne by the other
party. A "prevailing party" shall be deemed to be a party that prevails on all
substantive issues. In the absence of a prevailing party, each party shall bear
its own costs if the Court has not otherwise ordered.
7. EMPLOYEE'S REPRESENTATIONS; MISCELLANEOUS PROVISIONS.
(a) REPRESENTATION. The Employee represents and warrants that
(i) the Employee is not under any duty or obligation, including a covenant not
to compete, that would interfere with the performance of the Employee's duties
under this Agreement or would be beached by such performance, and (ii) the
performance of the Employee's duties hereunder will not conflict with any
obligation or undertaking of the Employee, legal, fiduciary or otherwise. These
representations shall survive the termination of this Agreement.
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(b) MISCELLANEOUS. This is a contract for unique personal
services. Neither this Agreement nor any right or obligation arising hereunder
may be assigned by the Employee without the prior written consent of the
Company, and any purported assignment without such consent shall be null and
void. Otherwise, this Agreement shall be binding upon and inure to the benefit
of the respective successors and permitted assigns of the parties. This
Agreement contains the entire agreement between the parties hereto with respect
to the subject matter hereof and supersedes all prior agreements,
representations, warranties and understandings, either oral or written, between
the parties with respect thereto, except for rights of the parties under benefit
plans, arrangements and schemes between the Company and the Employer in place on
the Effective Date relating to the employment relationship between the parties.
This Agreement may not be amended or modified except by a writing signed by each
of the parties hereto and delivered to the other party. The captions set forth
in this Agreement are for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement. Whenever in this
Agreement the words "include" or "including" are used, they shall be deemed to
mean "include, without limitation," and "including, without limitation,"
respectively. References in this Agreement to paragraphs are references to
paragraphs of this Agreement and in all cases shall include all subparagraphs
under such paragraphs. This Agreement has been the subject of negotiation and,
accordingly, no presumption or burden of proof will arise with respect to any
ambiguity or question of intent concerning this Agreement favoring or
disfavoring any party to this Agreement by virtue of the authorship of any
provision of this Agreement. The provisions of this Agreement may be waived only
by a written instrument signed by the party so waiving. All notices required or
permitted under this Agreement shall be in writing and shall be delivered by
hand, sent by first-class, certified mail, postage and fees prepaid or sent by
recognized overnight delivery service, addressed as follows:
(i) If to the Company: Catcher, Inc.
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Copy to: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(ii) If to the Employee: To the address set forth in the first
paragraph of this Agreement unless and until notice of another or different
address shall be given as provided in this paragraph 7. Notices shall be
effective upon delivery if hand delivered or delivered by recognized overnight
delivery service and upon the third day after mailing if sent by certified mail.
In the event any provision of this Agreement shall finally be determined to be
unlawful or unenforceable, such provision shall be deemed to be severed from
this Agreement and every other provision of this Agreement shall remain in full
force and effect. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of California without regard to
principles of conflicts of law. Except as required to enforce specific
performance rights described under paragraph 6(e), the parties hereby
irrevocably consent to the personal jurisdiction of the United States District
Court for the Southern District of California, or if such court lacks subject
matter jurisdiction, to the exclusive jurisdiction of the State Courts of the
State of California located in San Diego for all purposes permitted by this
Agreement. The parties hereby expressly waive any and all claims and defenses
either may have in respect to any proceeding in such court based on alleged lack
of personal jurisdiction, improper venue or inconvenient forum, or any similar
defense, to the maximum extent permitted by law. The obligations and
representations of the parties that expressly survive the expiration or
termination of this Agreement, or which, by their nature are intended to survive
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such expiration or termination, shall so survive in accordance with their terms
or as is required to give effect to such intention, respectively.
IN WITNESS WHEREOF, the Parties have signed this Agreement effective as
of the day and year first above written.
CATCHER, INC. ▇▇▇ ▇▇▇▇▇▇▇▇
By: ___________________________ ___________________________
Its Authorized Representative Individually
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EXHIBIT A
TO EMPLOYMENT AGREEMENT
BETWEEN CATCHER, INC.
AND ▇▇▇ ▇▇▇▇▇▇▇▇
CATCHER, INC.
FOUNDER'S SUBSCRIPTION AGREEMENT
THE SHARES OF CATCHER, INC. HAVE NOT BEEN REGISTERED, QUALIFIED, APPROVED OR
DISAPPROVED UNDER ANY FEDERAL OR STATE SECURITIES LAWS, NOR HAS THE UNITED
STATES SECURITIES AND EXCHANGE COMMISSION OR ANY OTHER FEDERAL OR STATE
REGULATORY AUTHORITY PASSED ON OR ENDORSED THE MERITS OF THE OFFERING OF THE
SHARES. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL. THE SHARES MAY NOT BE
SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF BY AN INVESTOR UNLESS THE SHARES
HAVE BEEN REGISTERED, OR UNLESS THE PROPOSED SALE, TRANSFER OR DISPOSITION IS
EXEMPT FROM REGISTRATION. THERE IS NO OBLIGATION OF THE ISSUER TO REGISTER THE
SHARES UNDER ANY SUCH LAWS. ACCORDINGLY, A PURCHASER OF SHARES MUST BE PREPARED
TO BEAR THE ECONOMIC RISK OF THE INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
FOR CALIFORNIA RESIDENTS. THESE SECURITIES HAVE NOT BEEN REGISTERED OR OTHERWISE
QUALIFIED FOR SALE UNDER THE CALIFORNIA CORPORATE SECURITIES LAW BUT ARE OFFERED
AND SOLD IN RELIANCE ON EXEMPTIONS FROM REGISTRATION FOR CERTAIN EXEMPT
TRANSACTIONS AS PROVIDED IN THAT LAW. IT IS UNLAWFUL TO CONSUMMATE A SALE OR
TRANSFER OF THESE SECURITIES, OR ANY INTEREST THEREIN, UNLESS THEY ARE
REGISTERED UNDER THAT LAW OR UNLESS AN EXEMPTION THEREUNDER IS AVAILABLE. THE
CALIFORNIA CORPORATION COMMISSION HAS NOT REVIEWED OR APPROVED THESE SECURITIES.
Dated as of April __, 2005
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Gentlemen:
The undersigned (the "Subscriber") is executing and delivering
this Agreement in connection with the subscription by the undersigned for shares
of preferred stock, par value $.001 per share, of Catcher, Inc., a Delaware
corporation (the "Company" or the "Corporation"). The undersigned understands
that the Corporation is contemplating, among other transactions and events, a
private placement of its equity securities to certain private investors (the
"Private Investment") followed immediately by an acquisition of all of the
capital stock of the Corporation by a public "shell" corporation ("Pubco")
pursuant to which the capital stock of the Corporation shall be exchanged for
the capital stock of Pubco so that the Corporation shall become a wholly-owned
subsidiary of Pubco (the "Public Transaction" and together with the Private
Investment, the "Transactions"). Further, the undersigned understands that the
Corporation is relying upon the accuracy and completeness of the information
contained herein in complying with its obligations under federal and state
securities laws and in considering whether or not to accept the subscription of
the undersigned.
The undersigned hereby irrevocably agrees, represents and warrants
with, to and for the benefit of the Corporation as follows:
1. SUBSCRIPTION AND CONDITION SUBSEQUENT.
(a) Subject to the terms and conditions of this Agreement, the
undersigned hereby subscribes for 160,728.5 shares of the Corporation's
preferred stock (the "Shares") at a purchase price of $.001 per share (the
"Purchase Price"). The undersigned tenders herewith as and for the Purchase
Price an assignment of all right, title and interest in the following
trademarks, including the goodwill therein, and the applications therefor
pending at the U.S. Patent and Trademark Office: (1) CATCHER, Ser. No.
78/433,770; and, (2) SECURE CARGO VISION, Ser. No. 78/433,768.
(b) The parties to the Transactions contemplate that this Agreement
shall have been executed and delivered prior to the closing of the Transactions.
However, if the Transactions are not closed, and all documents to be executed
and delivered pursuant to the terms of the Transactions are not executed and
delivered, the Corporation shall have the right to repurchase from the
Subscriber and, in that event, upon written notice to the Subscriber and the
tender by the Company of the Purchase Price to the Subscriber, the Subscriber
shall sell immediately sell the Stock to the Company.
(c) The undersigned is delivering herewith two signed copies of this
Agreement.
2. ACCEPTANCE. The undersigned understands and agrees that the
Corporation has full right to accept or reject this subscription, in whole or in
part. Upon acceptance of a subscription by the Corporation, one copy of this
Agreement, signed by the undersigned and, to indicate acceptance, by the
Corporation, shall be returned to the undersigned by the Corporation.
3. REPRESENTATIONS AND WARRANTIES.
(a) Set forth below is the true and correct address of the
undersigned's residence or principal place of business. The only jurisdiction in
which an offer to sell Shares was made to the undersigned is the jurisdiction in
which such residence or principal place of business is situated. The undersigned
has no present intention of becoming a resident of (or moving its principal
place of business to) any other state or jurisdiction.
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(b) The undersigned understands that the Shares have not been
registered under the Securities Act of 1933, as amended (the "the Securities
Act"), or under the laws of any other jurisdiction, and that the Corporation
does not contemplate and is under no obligation so to register the Shares. The
undersigned understands and agrees that the Shares must be held indefinitely
unless they are subsequently registered under the Securities Act and, where
required, under the laws of other jurisdictions or unless an exemption from
registration is available. The undersigned recognizes that there will be no
established trading market for the Shares and it is extremely unlikely that any
public market for the Shares will develop.
(c) The Stock for which the undersigned hereby subscribes is being
acquired solely for the undersigned's own account for investment and are not
being purchased with a view to or for resale, distribution or other disposition,
and the undersigned has no present plans to enter into any contract,
undertaking, agreement or arrangement for any such resale, distribution or other
disposition, except simultaneously to Pubco in the Public Transaction.
(d) The undersigned understands, acknowledges, agrees and is aware
that:
(i) no federal or state agency has passed upon the Shares or
made any finding or determination as to the fairness of this
investment;
(ii) the Shares are speculative investments which involve a
high degree of risk, including the risk that the undersigned might lose
its entire investment in the Corporation; and
(iii) any federal income tax benefits which may be available
to the undersigned may be lost through adoption of new laws, amendments
to existing laws or regulations, or changes in the interpretation of
existing laws and regulations;
(e) In connection with the undersigned's investment in the Corporation,
the undersigned has obtained the advice of the undersigned's own investment
advisors, counsel and accountants ("advisors").
(f) The undersigned and the undersigned's advisors have been furnished
all materials relating to the Corporation and the offering of Shares and the
Public Transaction (the "Offering") which the undersigned and the undersigned's
advisors have requested, including without limitation any private placement
memorandum furnished to the private investors in the Private Transaction. The
undersigned and the undersigned's advisors have been afforded the opportunity to
ask questions of the Corporation concerning the terms and conditions of the
Offering and to obtain any additional information.
(g) The Corporation has answered all inquiries that the undersigned and
the undersigned's advisors have made concerning the Corporation or any other
matters relating to the creation and operations of the Corporation and the terms
and conditions of the Offering.
(h) At no time was the undersigned presented with or solicited by any
leaflet, public promotional meeting, newspaper or magazine article, radio or
television advertisement or any other form of general advertising or general
solicitation.
(i) The undersigned has the financial ability to bear the economic risk
of the undersigned's investment in the Corporation and has adequate net worth
and means of providing for the undersigned's current needs and contingencies to
sustain a complete loss of the undersigned's investment and has no need for
liquidity in the undersigned's investment in the Corporation.
12
(j) The Subscriber hereby represents that the Subscriber, either by
reason of the Subscriber's business or financial experience or the business or
financial experience of the Subscriber's professional advisors (who are
unaffiliated with and not compensated by the Company or any affiliate or selling
agent of the Company, directly or indirectly), has the capacity to protect the
Subscriber's own interests in connection with the transaction contemplated
hereby.
(k) The Subscriber represents that the Subscriber is an "accredited
investor" as such term is defined in Rule 501 of Regulation D ("Regulation D")
promulgated under the Securities Act, as indicated by the Subscriber's responses
to the questions contained in Section 11 hereof, and that the Subscriber is able
to bear the economic risk of an investment in the Stock.
(l) The Subscriber represents that (i) the Subscriber was contacted
regarding the sale of the Shares by the Company (or an authorized agent or
representative thereof) with whom the Subscriber had a prior substantial
pre-existing relationship and (ii) no Stock was offered or sold to it by means
of any form of general solicitation or general advertising, and in connection
therewith, the Subscriber did not (A) receive or review any advertisement,
article, notice or other communication published in a newspaper or magazine or
similar media or broadcast over television or radio, whether closed circuit, or
generally available; or (B) attend any seminar meeting or industry investor
conference whose attendees were invited by any general solicitation or general
advertising.
(m) The Subscriber hereby acknowledges that the Offering has not been
reviewed by the United States Securities and Exchange Commission (the "SEC") nor
any state regulatory authority since the Offering is intended to be exempt from
the registration requirements of Section 5 of the Securities Act pursuant to
Regulation D promulgated thereunder. The Subscriber understands that the Shares
have not been registered under the Securities Act or under any state securities
or "blue sky" laws and agrees not to sell, pledge, assign or otherwise transfer
or dispose of the Securities unless they are registered under the Securities Act
and under any applicable state securities or "blue sky" laws or unless an
exemption from such registration is available.
(n) The Subscriber understands that there is no public market for the
Shares and that no market may develop for any of such Shares. The Subscriber
understands that even if a public market develops for such Shares, Rule 144
("Rule 144") promulgated under the Securities Act requires for non-affiliates,
among other conditions, a one-year holding period prior to the resale (in
limited amounts) of securities acquired in a non-public offering without having
to satisfy the registration requirements under the Securities Act. The
Subscriber understands and hereby acknowledges that the Company is under no
obligation to register any of the Shares under the Securities Act or any state
securities or "blue sky" laws.
(o) The Subscriber consents to the placement of a legend on any
certificate or other document evidencing the Shares that such Shares have not
been registered under the Securities Act or any state securities or "blue sky"
laws and setting forth or referring to the restrictions on transferability and
sale thereof contained in this Agreement. The Subscriber is aware that the
Company will make a notation in its appropriate records with respect to the
restrictions on the transferability of such Shares. The legend to be placed on
each certificate shall be in form substantially similar to the following:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT") OR ANY STATE SECURITIES OR "BLUE SKY LAWS," AND MAY NOT
BE OFFERED, SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR
HYPOTHECATED ABSENT AN EFFECTIVE REGISTRATION THEREOF UNDER
SUCH ACT OR COMPLIANCE WITH RULE 144 PROMULGATED UNDER SUCH
ACT, OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL,
REASONABLY SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT
SUCH REGISTRATION IS NOT REQUIRED."
13
(p) The Subscriber represents that the Subscriber has full power and
authority (corporate, statutory and otherwise) to execute and deliver this
Agreement and to purchase the Shares. This Agreement constitutes the legal,
valid and binding obligation of the Subscriber, enforceable against the
Subscriber in accordance with its terms.
(q) If the Subscriber is a corporation, partnership, limited liability
company, trust, employee benefit plan, individual retirement account, ▇▇▇▇▇
Plan, or other tax-exempt entity, it is authorized and qualified to invest in
the Company and the person signing this Agreement on behalf of such entity has
been duly authorized by such entity to do so.
(r) The Subscriber acknowledges that at such time, if ever, as the
Shares is registered under the Securities Act, sales of the Shares will be
subject to state securities laws.
4. COVENANT TO UPDATE INFORMATION. The undersigned covenants to advise
the Corporation by telephone and in writing if any representation and warranty
contained herein becomes untrue.
5. AGREEMENT WITH RESPECT TO RESALE. The undersigned agrees that no
Shares will be resold without registration under the 1933 Act, and, where
required, under the laws of other jurisdictions, or availability of an exemption
therefrom.
6. REQUIRED SALE. In connection with the consummation of the
Transactions, Subscriber shall be obligated (which obligation shall be
enforceable by the Corporation) to vote the Shares (to the extent necessary or
required) in favor of the Transactions, execute and deliver a Stock Exchange
Agreement (which such Stock Exchange Agreement is accompanied by a Registration
Rights Agreement) for the purchase of the Shares from Subscriber by Pubco in
exchange for capital stock of Pubco in form and substance satisfactory to the
Corporation, and otherwise to take all necessary action and deliver all
necessary documents to cause the Corporation and the stockholders of the
Corporation to consummate the Transactions.
7. INDEMNIFICATION. The undersigned acknowledges that the undersigned
understands the meaning and legal consequences of the representations and
warranties contained in this Agreement and agrees to indemnify and hold harmless
the Corporation and its affiliates, employees, officers and agents and each
other Subscriber from and against any and all loss, damage, liability or
expense, including, without limitation, legal fees, due to or arising out of a
breach of any representation or warranty of the undersigned contained in any
document furnished by the undersigned in connection with the offering and sale
of the Shares, or failure by the undersigned to comply with any covenant or
agreement by the undersigned herein or in any other document furnished by the
undersigned to any of the foregoing in connection with this transaction.
8. ASSIGNMENT. This Agreement may not be assigned or transferred by
either party without the consent of the other party and any purported assignment
or transfer without such consent shall be null and void.
9. AMENDMENT AND WAIVER. This Agreement may be amended or modified only
by an instrument signed by the undersigned and the Corporation. A waiver of any
provision of this Agreement
14
must be in writing, designated as such, and signed by the party against whom
enforcement of that waiver is sought. The waiver by a party of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent or other breach thereof.
10. BINDING EFFECT. Except as otherwise provided herein, this Agreement
shall be binding upon and inure to the benefit of the undersigned and the
Corporation and their respective heirs, executors administrators, successors,
legal representatives and assigns. If the undersigned shall be joint and
several, then the representations and warranties herein contained shall be
deemed to be made by and be binding upon each such person and such person's
heirs, executors, administrators, legatees, devisees, permitted assigns, legal
representatives and successors.
11. INVESTOR QUESTIONNAIRE
11.1. The Subscriber represents and warrants that he, she or it comes
within one category marked below, and that for any category marked, he, she or
it has truthfully set forth, where applicable, the factual basis or reason the
Subscriber comes within that category. ALL INFORMATION IN RESPONSE TO THIS
SECTION WILL BE KEPT STRICTLY CONFIDENTIAL. The undersigned agrees to furnish
any additional information which the Company deems necessary in order to verify
the answers set forth below.
Category A __ The undersigned is an individual (not a partnership,
corporation, etc.) whose individual net worth, or joint net
worth with his or her spouse, presently exceeds $1,000,000.
Explanation: In calculating net worth you may include equity
in personal property and real estate, including your principal
residence, cash, short-term investments, stock and securities.
Equity in personal property and real estate should be based on
the fair market value of such property less debt secured by
such property.
Category B __ The undersigned is an individual (not a partnership,
corporation, etc.) who had an income in excess of $200,000 in
each of the two most recent years, or joint income with his or
her spouse in excess of $300,000 in each of those years (in
each case including foreign income, tax exempt income and full
amount of capital gains and losses but excluding any income of
other family members and any unrealized capital appreciation)
and has a reasonable expectation of reaching the same income
level in the current year.
Category C __ The undersigned is a director or executive officer of the
Company which is issuing and selling the Shares.
Category D __ The undersigned is a bank; a savings and loan association;
insurance registered investment company; registered business
development company; led small business investment company
("SBIC"); or employee benefit plan the meaning of Title 1 of
ERISA and (a) the investment decision is made by a plan
fiduciary which is either a bank, savings and loan
association, insurance company or registered investment
advisor, or (b) the plan has total assets in excess of
$5,000,000 or (c) is a self directed plan with investment
decisions to be made solely by persons that are accredited
investors, describe (entity)
Category E __ The undersigned is a private business development company as
defined in section 202(a)(22) of the Investment Advisors Act
of 1940. (describe entity)
15
Category F __ The undersigned is either a corporation, partnership,
Massachusetts business trust, or non-profit organization
within the meaning of Section 501(c)(3) of the Internal
Revenue Code, in each case not formed for the specific purpose
of acquiring the Common Stock and with total assets in excess
of $5,000,000. (describe entity)
Category G __ The undersigned is a trust with total assets in excess of
$5,000,000, not formed for the specific purpose of acquiring
the Securities, where the purchase is directed by a
"sophisticated investor" as defined in Regulation
506(b)(2)(ii) under the Act.
Category H __ The undersigned is an entity (other than a trust) in which all
of the equity owners are "accredited investors" within one or
more of the above categories. If relying upon this Category
alone, each equity owner must complete a separate copy of this
Agreement. (describe entity)
Category I __ The undersigned is not within any of the categories above and
is therefore not an accredited investor.
The undersigned agrees that the undersigned will notify the
Company in the event that the representations and warranties
in this Agreement shall cease to be true, accurate and
complete.
11.2. SUITABILITY (please answer each question)
(a) For an individual Subscriber, please describe your current employment,
including the company by which you are employed and its principal
business:
(b) For an individual Subscriber, please describe any college or graduate
degrees held by you:
(c) For all Subscribers, please list types of prior investments:
(d) For all Subscribers, please state whether you have participated in
other PRIVATE PLACEMENTS before:
YES NO
(e) If your answer to question (d) above was "YES", please indicate
frequency of such prior participation in PRIVATE PLACEMENTS of:
Public Private Public or Private VoIP or other
Companies Companies Communications Companies
--------------------------------------------------------------
Frequently
Occasionally
Never
16
(f) For individual Subscribers, do you expect your current level of income
to significantly decrease in the foreseeable future:
YES NO
(g) For trust, corporate, partnership and other institutional Subscribers,
do you expect your total assets to significantly decrease in the
foreseeable future:
YES NO
(h) For all Subscribers, do you have any other investments or contingent
liabilities which you reasonably anticipate could cause you to need
sudden cash requirements in excess of cash readily available to you:
YES NO
(i) For all Subscribers, are you familiar with the risk aspects and the
non-liquidity of investments such as the securities for which you seek
to subscribe?
YES NO
(j) For all Subscribers, do you understand that there is no guarantee of
financial return on this investment and that you run the risk of losing
your entire investment?
YES NO
11.3. MANNER IN WHICH TITLE IS TO BE HELD, (circle one)
(a) Individual Ownership
(b) Community Property
(c) Joint Tenant with Right of
Survivorship (both parties
must sign)
(d) Partnership*
(e) Tenants in Common
(f) Company*
(g) Trust*
(h) Other*
*If Securities are being subscribed for by an entity, the
attached Certificate of Signatory must also be completed.
11.4. NASD AFFILIATION.
Are you affiliated or associated with an NASD member firm (please check one):
YES NO
If Yes, please describe:
*If Subscriber is a Registered Representative with an NASD member firm, have the
following acknowledgment signed by the appropriate party:
17
The undersigned NASD member firm acknowledges receipt of the notice required by
Article 3, Sections 28(a) and (b) of the Rules of Fair Practice.
Name of NASD Member Firm
By:_______________________________________
Authorized Officer
Date:_____________________________________
11.5 The undersigned is informed of the significance to the Company of
the foregoing representations and answers contained in the Confidential Investor
Questionnaire contained in this Section 11 and such answers have been provided
under the assumption that the Company will rely on them.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
18
IN WITNESS WHEREOF, the undersigned has executed this Subscription
Agreement as of the __ day of April 2005.
▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Print Name of Individual
-----------------------------------
Signature of Individual
Legal Residence of Individual:
-----------------------------------
Number and Street
-----------------------------------
City, State, Zip Code
-----------------------------------
Social Security Number
Accepted By:
CATCHER, INC.
By: _____________________________________
Title: __________________________________
19
EXHIBIT B
TO EMPLOYMENT AGREEMENT
BETWEEN CATCHER, INC.
AND ▇▇▇ ▇▇▇▇▇▇▇▇
EMPLOYEE AGREEMENT RELATING TO
INTELLECTUAL PROPERTY AND CONFIDENTIALITY
THIS AGREEMENT is between Catcher, Inc. ("Catcher") and the
person named in the signature block at the end of this Agreement (referred to in
this Agreement as "you" or "your").
In consideration of your employment by Catcher, or if you are
an employee of Catcher at the time you sign this Agreement, your continued
employment, and your regular compensation for as long as you remain an employee
of Catcher, you acknowledge, represent and agree to the following:
I. CATCHER'S CONFIDENTIAL INFORMATION.
1.1. You acknowledge that as a result of your
employment by Catcher, you will gain access to and knowledge of confidential,
proprietary and/or trade secret information of Catcher regarding financial,
planning, manufacturing and customer matters, technological data, methods, and
processes, as well as other proprietary and confidential information, both oral
and written (collectively referred to in this Agreement as "Confidential
Information"). You further acknowledge that all Confidential Information is the
exclusive property of Catcher and that disclosure of Confidential Information
would cause Catcher to suffer serious competitive disadvantage as well as
immediate and irreparable injury and damages. Accordingly, you will not, either
during your employment by Catcher, or at any time thereafter, use for any
purpose (other than for the benefit of Catcher during your employment) or
disclose to any person, firm or entity any Confidential Information unless
required by law in which case the Employee shall give prompt notice to Catcher.
1.2. Without limiting the generality of the
foregoing, you will not download or copy any Confidential Information into any
computer or media not owned by Catcher and permanently located on Catcher's
premises unless authorized by Catcher to do so in writing.
1.3. Confidential Information does not include any
information that is or becomes generally available to the public, other than as
a result of disclosure by or through you inadvertently or on purpose.
1.4. You shall not without the prior written consent
of the President and Chief Executive Officer of Catcher either directly or
indirectly publish any opinion, fact or material or deliver any lecture or
address or participate in the making of any film, radio broadcast or television
transmission or communicate with any representative of the media or any third
party relating to the business or affairs of Catcher or to any of its officers,
employees, customers/clients, suppliers, distributors, agents or shareholders or
to the development or exploitation of the Company's Intellectual Property
(defined below). For the purpose of this paragraph, "media" shall include
television (terrestrial, satellite and cable) radio, newspapers and other
journalistic publications.
20
II. INVENTIONS AND OTHER INTELLECTUAL PROPERTY. The following
paragraphs 2.1 through 2.5 shall apply to works of authorship (which shall be
deemed to be "works for hire"), copyrightable material, inventions, improvements
and discoveries (whether patentable or not), trademarks, trade dress or other
intellectual property that has been or will be made, conceived or generated by
you during your employment by Catcher, whether or not made, conceived or
generated within the course of your employment or wholly or partially on your
own time, relating in any way to the business of Catcher, or resulting directly
or indirectly from your employment by Catcher (collectively referred to as
"Intellectual Property"). In no event shall Intellectual Property include any
intellectual property that you develop entirely within your own time WITHOUT
using Catcher's equipment, supplies, facilities or trade secret information
unless such intellectual property either (1) relates at the time of conception
or reduction to practice to Catcher's business or to Catcher's actual or
demonstrable research or development, or (2) results from any work performed by
you for Catcher. Catcher shall have the right to require disclosure by you in
confidence of all Intellectual Property made, conceived or generated by you,
solely or jointly with others, during your employment by Catcher, to determine
whether or not such intellectual property is Intellectual Property covered by
this Agreement.
2.1. OWNERSHIP OF INTELLECTUAL PROPERTY.
2.1.1. All Intellectual Property (including,
without limitation, works of authorship to which the "works for hire" doctrine
is found inapplicable) and all rights therein, will be and are hereby deemed to
be, assigned and transferred by this Agreement to Catcher, its successors and
assigns (including any third party assignee of Catcher pursuant to the terms of
a license). Catcher, its successors and assigns will have the exclusive right to
obtain copyright, patent and/or trademark registrations or other protection of
the Intellectual Property (including, without limitation, maintaining such
Intellectual Property as trade secrets) in Catcher's own name, or in the names
of Catcher's successors or assigns, as inventor, author and/or owner, and to
secure any renewals and extensions of such protection, throughout the world. If
Catcher chooses to maintain any part or all of the Intellectual Property as a
trade secret, Catcher shall so inform you and you will maintain such
Intellectual Property as Confidential Information in accordance with paragraph
1, above.
2.1.2. You hereby acknowledge that you
retain no rights whatsoever with respect to Intellectual Property, including,
without limitation, any rights to reproduce such Intellectual Property, or to
make, have made, use and/or sell products based upon Intellectual Property, or
otherwise to prepare derivatives thereof, or to file patent, copyright or
trademark applications with respect thereto, or to distribute copies of any
Intellectual Property in any manner whatsoever, or to exhibit, use or display
any such Intellectual Property publicly or otherwise, or to license or assign to
any third party the right to do any of the foregoing.
2.2. FILINGS AND OTHER ASSISTANCE. Without further
remuneration (except for out-of-pocket expenses), you will execute and deliver
any document and give any assistance as may be reasonably requested by Catcher
to effect the ownership rights provided in this Agreement or otherwise to
further the purposes of this paragraph 2.
2.3. PROTECTING CATCHER INTELLECTUAL PROPERTY. You
will follow the policies and procedures of Catcher issued from time to time with
respect to Catcher's Intellectual Property.
2.4. RETURN OF CATCHER DOCUMENTS. Upon termination of
your employment with Catcher (whether with or without cause or reason) you will
immediately return to Catcher all copies of all written Confidential Information
and all documents relating to or embodying any Intellectual Property, in your
possession or control.
21
2.5. YOUR INTELLECTUAL PROPERTY. You acknowledge that
you have made no inventions, improvements or discoveries, whether or not
patentable, and have generated no other intellectual property prior to the date
of your employment, except:
2.5.1. None _____ [Employee's Initials];
(IF NONE, INITIAL ABOVE AND CROSS OUT
SUBPARAGRAPH 2.5.2, BELOW);
2.5.2. the inventions, improvements and
discoveries or other intellectual property listed on the attached Schedule 1
signed by you and by an officer of Catcher, a copy of which has been delivered
to you together with this Agreement.
III. SPECIFIC RELIEF. In the event of breach by you of any of
your obligations under paragraphs 1, 2 or 4.3 of this Agreement, Catcher shall
have the right to have such obligation specifically enforced by a court of
competent jurisdiction, including, without limitation, the right to entry of
restraining orders and injunctions, whether preliminary, mandatory, temporary or
permanent, against the violation, threatened or actual, and whether or not
continuing, of such obligation, without the necessity of showing any particular
injury or damage, and without the posting of any bond or other security, it
being acknowledged and agreed that any such breach or threatened breach would
cause immediate and irreparable injury to Catcher and that money damages alone
would not provide an adequate remedy. In the event that Catcher commences legal
action or seeks legal advice to enforce your obligations under paragraphs 1, 2
or 4.3 of this Agreement, and is the prevailing party therein, you shall be
responsible for all costs related to such action or advice, including, without
limitation, reasonable attorneys' fees.
IV. POST-EMPLOYMENT MATTERS.
4.1. All of your obligations under this Agreement
that either expressly or by their nature survive the termination of your
employment by Catcher in order for such obligations to have their intended
effect, shall survive such termination.
4.2. Upon termination of your employment by Catcher,
you agree to participate in an "exit" interview with representatives of Catcher
on Catcher's premises to discuss Intellectual Property matters and your
continuing obligations under this Agreement; and
4.3. After termination of employment, the Employee
shall not at any time thereafter make any untrue or misleading oral or written
statement concerning the business and affairs of the Company or any affiliated
company nor represent himself or permit himself to be held out as being in any
way connected with or interested in the business of the Company or any
affiliated company (except as a former employee for the purpose of complying
with any applicable statutory requirements).
V. NO OTHER AGREEMENT. You acknowledge and represent that you
are under no obligation to any other person, firm or entity which obligation
would preclude, conflict with or be an impediment to your obligations under this
Agreement.
VI. MISCELLANEOUS PROVISIONS. Neither this Agreement nor any
right or obligation arising hereunder may be assigned by you without the prior
written consent of Catcher, and any purported assignment without such consent
shall be null and void. This Agreement shall be binding upon and inure to the
benefit of the respective successors and permitted assigns of the parties. This
Agreement contains the entire agreement between the parties hereto with respect
to the subject matter hereof and supersedes all prior agreements,
representations, warranties and understandings, either oral or written, between
the
22
parties with respect thereto. This Agreement may not be amended or modified
except by a writing signed by each of the parties hereto. The captions set forth
in this Agreement are for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement. The provisions of this
Agreement may be waived only by a written instrument executed by the party so
waiving. In the event any provision of this Agreement shall finally be
determined to be unlawful or unenforceable, such provision shall be deemed to be
severed from this Agreement and every other provision of this Agreement shall
remain in full force and effect. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of California without regard
to principles of conflicts of law. The parties hereby irrevocably consent to the
personal jurisdiction of the United States District Court for the Southern
District of California, or if such court lacks subject matter jurisdiction, to
the exclusive jurisdiction of the State Courts of the State of California
located in San Diego for all purposes permitted by this Agreement. The parties
hereby expressly waive any and all claims and defenses either may have in
respect to any proceeding in such court based on alleged lack of personal
jurisdiction, improper venue or inconvenient forum, or any similar defense, to
the maximum extent permitted by law.
CATCHER, INC. (Employer) ▇▇▇ ▇▇▇▇▇▇▇▇ (Employee)
By: _______________________________ ______________________________
Its Authorized Representative Signature
Date:_________________________ Date:_________________________
23
SCHEDULE 1
The following is a list and non-confidential description of all inventions,
improvements, discoveries and other intellectual property made or owned by the
below-signed Employee prior to employment with Catcher, Inc.:(1)
1. Portable Handheld Security Device described in patent application 10/885,515
which application and the associated Intellectual Property is being assigned to
Catcher, Inc. as part of the Transactions
2.
3.
4.
5.
6.
7.
8.
9.
(Use as many additional Schedule 1 sheets as necessary.)
Catcher, Inc. Employee
By:_______________________ Name:_________________________
Date:_____________________ Signature:____________________
---------------------------
(1) Please ask your supervisor to obtain help for you if you need assistance in
completing this Exhibit.