▇▇▇▇▇▇▇▇ EMPLOYMENT AGREEMENT
This Agreement is entered into between ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("Employee")
and ICOA, Inc. ("Company"), upon the following terms and conditions:
1. Duties; At-Will Employment. Employee will perform for Company such
duties as may be designated by Company from time to time. Employee is hereby
retained by Company for a period of one year from the date hereof (the "Term")
(except that Employee may be terminated involuntarily for Cause) and thereafter
is retained for no specified term, and may be terminated by Company at any time,
with or without cause, and with or without notice. Similarly, Employee may
terminate Employee's employment with Company at any time, with or without cause,
and with or without notice.
2. Compensation. In exchange for the services Employee will perform for
Company, the Company agrees to provide the following compensation to Employee:
2.1 Salary. Employee shall be paid an annual salary of $144,000,
payable semi-monthly.
2.2 Severance. In the event that Employee's employment is terminated
involuntarily without Cause as of a date more than six months from the date of
this Agreement, Employee will be entitled to a severance payment equivalent to
eight month's salary, to be payable quarterly, in advance, commencing with such
termination. "Cause" means (i) incompetence, fraud, personal dishonesty,
embezzlement or acts of gross negligence or gross misconduct on the part of
Employee in the course of his or her employment or services, (ii) a Employee's
engagement in conduct that is materially injurious to the Company, (iii) a
Employee's conviction by a court of competent jurisdiction of, or pleading
"guilty" or "no contest" to, (x) a felony, or (y) any other criminal charge
(other than minor traffic violations) which could reasonably be expected to have
a material adverse impact on the Company's or an Affiliate's reputation or
business; (iv) public or consistent drunkenness by a Employee or his illegal use
of narcotics which is, or could reasonably be expected to become, materially
injurious to the reputation or business of the Company or an Affiliate or which
impairs, or could reasonably be expected to impair, the performance of a
Employee's duties to the Company; or (v) willful failure by a Employee to follow
the lawful directions of a superior officer or the Board. Where Cause is based
upon a willful and continued failure by Employee to perform material duties owed
to the Corporation (other than any such failure resulting from incapacity due to
physical or mental illness), Cause shall arise only after a written demand for
substantial performance is delivered to Employee which identifies the manner in
which that Employee has not substantially performed such duties, and what
actions are needed to cure such condition.
2.3 Benefits. Employee is eligible for group health insurance, 401(k)
plan participation, expense reimbursement, vacation, bonus plan, equity
compensation and other benefits as they are offered to senior management of the
Company.
3. Confidentiality and Proprietary Information. Employee and the Company
agree that the following confidentiality and proprietary information terms and
conditions shall govern their relationship:
3.1 Definition of Confidential Information. "Confidential Information"
as used in this Agreement shall mean valuable information concerning Company's
business which is not generally known to the public and is disclosed to Employee
during the period of and pursuant to the scope of his employment with Company.
"Confidential Information" shall include trade secrets, know-how, inventions,
techniques, processes, algorithms, software programs, schematics, software
source documents, contracts, customer lists, financial information, and sales
and marketing plans and information.
3.2 Confidentiality Obligations. Employee agrees to use Confidential
Information, and to use reasonable care to disclose Confidential Information
only to those persons who need to know such Confidential Information, for the
purpose of performing his duties of employment to the Company.
3.3 Exclusions from Confidentiality Obligations. Employee's
obligations under Section 3.2 ("Confidentiality Obligations") with respect to
any portion of Confidential Information shall not apply to such portion that
Employee can demonstrate that: (a) was known to Employee at the time of
disclosure, (b) was publicly known at or subsequent to the time such portion was
communicated to Employee by Company through no fault of Employee; (c) was in
Employee's possession free of any obligation of confidence at or subsequent to
the time such portion was communicated to Employee by Company; (d) was developed
by Employee independently of and without reference to any of the Confidential
Information communicated to Employee by Company; (e) was required to be
disclosed in response to a valid order by a court or other governmental body or
to establish the rights of either party under this Agreement, or (f) was
approved for release by written authorization of Company.
3.4 Ownership of Materials. All materials (including, without
limitation, documents, drawings, models, apparatus, sketches, designs and lists)
furnished to Employee by Company, and which are designated in writing to be the
property of Company, shall remain the property of Company. Employee shall return
to Company or destroy such materials and all copies thereof upon the written
request of Company.
4. Term. This Agreement shall govern all communications from Company to
Employee that are made during the period from the Effective Date to the date
upon which Employee's employment with Company ceases, provided, however, that
Employee's obligations under Section 3.2 ("Confidentiality Obligations") with
respect to Confidential Information which Employee has received prior to the
termination of Employee's employment shall continue for one (1) year after the
date of such termination of employment unless terminated earlier pursuant to
Section 3.3 ("Exclusions from Confidentiality Obligations").
5. No Conflict of Interest. During Employee's period of employment by
Company and for one year thereafter (except where Employee is terminated
involuntarily without Cause), Employee will not, as a principal, agent,
employee, consultant, officer, director, investor, joint venture participant or
partner of any person, firm, corporation or business entity other than the
Company, directly or indirectly, without the express prior written consent of
the Company: (1) engage or participate in any business whose products or
services are competitive with that of the Company as of the date of termination
of Employee's employment; (2) aid or counsel any other person, firm, corporation
or business entity to do any of the above; (3) become engaged by a firm,
corporation, partnership or joint venture which competes with the business of
the Company as of the date of termination of Employee's employment; or (4)
approach, solicit business from, or otherwise do business or deal with any
customer of the Company in connection with any product or service competitive to
any provided by the Company as of the date of termination of Employee's
employment.
6. Survival. Other than Section 2 ("Compensation"), this Agreement: (a)
shall survive Employee's employment by Company, to the extent delineated herein;
(b) does not in any way restrict Employee's right or the right of Company to
terminate Employee's employment at any time, for any reason or for no reason
after the expiration of the Term; (c) inures to the benefit of successors and
assigns of Company; and (d) is binding upon Employee's heirs and legal
representatives.
7. No Solicitation. During the term of Employee's employment with Company
and for a period of twelve months thereafter, Employee will not solicit,
encourage, or cause others to solicit or encourage any employees, independent
contractors, or clients of Company to terminate their employment, contractual,
or client relationship with Company.
8. Notices. Any notice required or permitted by this Agreement shall be in
writing and shall be delivered as follows, with notice deemed given as
indicated: (a) by personal delivery, when delivered personally; (b) by overnight
courier, upon written verification of receipt; (c) by telecopy or facsimile
transmission, upon acknowledgment of receipt of electronic transmission; or (d)
by certified or registered mail, return receipt requested, upon verification of
receipt. Notices shall be sent to such address as either party may designate in
writing to the other.
9. Disputes; Governing Law.
(a) Any and all disputes arising out of or in any way related
to Employee's employment with, or separation from, Company, as well as any and
all disputes or claims arising out of or in any way related to this Agreement,
including, without limitations, fraud in the inducement of this Agreement, or
relating to the general validity or enforceability of this Agreement, shall be
submitted to final and binding arbitration before an arbitrator of the American
Arbitration Association, Providence, Rhode Island, in accordance with the rules
of that body governing commercial disputes, and prevailing party shall be
entitled to reasonable costs and attorneys' fees. Judgment on the award rendered
by the arbitrator may be entered in any court having jurisdiction thereof.
(b) This Agreement shall be governed in all respects by the
laws of the United States of America and by the laws of the State of Rhode
Island, as such laws are applied to agreements entered into and to be performed
entirely within Rhode Island between Rhode Island residents. Each of the parties
irrevocably consents to the exclusive personal jurisdiction of the federal and
state courts located in Rhode Island, as applicable, for any matter arising out
of or relating to this Agreement, except that in actions seeking to enforce any
order or any judgment of such federal or state courts located in Rhode Island,
such personal jurisdiction shall be nonexclusive.
10. Severability. If any provision of this Agreement is held by a court of
law to be illegal, invalid or unenforceable, (i) that provision shall be deemed
amended to achieve as nearly as possible the same economic effect as the
original provision, and (ii) the legality, validity and enforceability of the
remaining provisions of this Agreement shall not be affected or impaired
thereby.
11. Waiver; Amendment; Modification. The waiver by either party of a term
or provision of this Agreement, or of a breach of any provision of this
Agreement, shall not be effective unless such waiver is in writing signed by the
party against whom enforcement is sought. No waiver by either party of, or
consent by either party to, a breach by the other party, will constitute a
waiver of, consent to or excuse of any other or subsequent breach by such party.
This Agreement may be amended or modified only with the written consent of both
parties. No oral waiver, amendment or modification shall be effective under any
circumstances whatsoever.
12. Entire Agreement. This Agreement, together with the Employment
Agreement and the Indemnification Agreement, represents Employee's entire
understanding with Company with respect to the subject matter of this Agreement
and supersedes all previous understandings, written or oral.
ICOA, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, President
October 26, 2005 October 26, 2005