Exhibit 10.44
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT is between 180
Connect, Inc., a Nevada corporation (the “ Company
’), and Kyle M. Hall (“ Executive
”).
In consideration of the mutual
covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1.
Employment .
The Company shall employ Executive,
and Executive hereby accepts employment with the Company, upon the
terms and conditions set forth in this Agreement for the Employment
Term (see Section 24 for all definitions). Executive’s
start date shall be October 17, 2007. This Agreement will
automatically be renewed for a Renewal Term upon the expiration of
the Initial Term or Renewal Term then in effect unless one party
provides the other party written notice of intent not to renew at
least one hundred and eighty (180) days prior to the
expiration of the Initial Term or Renewal Term then in
effect.
2.
Authority .
It is agreed that the governance
committee of the Parent’s Board of Director’s shall
serve as the final arbiter of interpretation, application and
execution of all provisions of this Agreement to the extent not
otherwise specified.
3.
Position and Duties .
(a)
During the Employment Term, Executive shall serve as the Senior
Vice President and Chief Legal Officer (“CLO”) of the
Company and the other Related Companies, and shall have the normal
duties, responsibilities and authority, consistent with a CLO
position of a publicly-traded company, including, without
limitation, providing leadership, direction and oversight for all
legal activities and issues of the Related Companies, including
without limitation, all matters and reporting arising under the
1933 Securities Act and 1934 Exchange Act; imparting legal advice
and guidance to the Board of Directors, senior management and other
staff of the Related Companies; managing general business
transactions, drafting and reviewing contracts and other legal
documentation; managing litigation, mediation and dispute
resolution; managing external legal resources; participating in
negotiation and structuring of new ventures and merger, acquisition
and disposition transactions; assisting in the assessment,
establishment and, as appropriate, upgrading of compliance programs
and procedures related to general corporate and human resource
matters; coordinating/managing corporate governance procedures;
serving as a member of the senior leadership team; and supervising
professional and administrative staff. Executive shall be based in
Englewood, Colorado. Executive shall report directly to the Chief
Executive Officer (“CEO”) of the Company and the other
Related Companies. It is understood that Executive’s title
and rate of pay may change in the future by mutual agreement in
writing of the parties and that this Agreement shall be
automatically deemed amended at and as of the time of any such
change, without the necessity of further formal amendment of this
Agreement.
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(b)
Executive shall devote Executive’s best efforts and
Executive’s full business time and attention (except for
permitted vacation periods and reasonable periods of illness or
other incapacity in accordance with the Company’s applicable
policies, as they may be amended from time to time) to the business
and affairs of the Related Companies. Executive shall perform
Executive’s duties and responsibilities under this Agreement
to the best of Executive’s abilities in a diligent,
trustworthy, businesslike and efficient manner. During employment,
Executive will (i) avoid conflicts of interest, and
(ii) advise the Parent’s Board of Directors of any
business opportunity that involves products or services like those
offered by the Related Companies or that a reasonable person in
Executive’s position might otherwise anticipate that the
Related Companies would have an interest in. Executive shall be
subject to a duty of loyalty to Related Companies during
Executive’s employment provided for hereunder and for as long
thereafter as the law allows. This Section shall not prevent the
Employee from owning securities of any corporation whose securities
are publicly traded on a stock exchange recognized by the proper
authorities of the country in which the stock exchange is located,
if such holdings represent less than three percent (3%) of the
aggregate issued and outstanding securities of the same kind as
such corporation.
4.
Base Salary and Benefits .
(a)
During the Employment Term, the Company shall pay Executive
(i) a base salary of two hundred ten thousand dollars
($210,000.00) per annum (the “ Base Salary ”)
and (ii) a vehicle allowance of six hundred dollars ($600.00)
per month each month (“Vehicle Allowance”), each of
which Base Salary and Vehicle Allowance shall be payable in regular
installments in accordance with the Company’s general payroll
practices and shall be subject to customary withholding.
Executive’s Base Salary shall be reviewed annually and shall
be subject to adjustment based on, among other things, market
practice and Executive’s performance; provided ,
however , that modifications to compensation are subject to
Executive’s right to consent or object on grounds that the
change is a detrimental, material change under paragraph
24(h).
(b)
Executive will be eligible to participate in an annual bonus plan
with bonus potential of up to fifty percent (50%) of Base Salary.
This bonus plan will be based on a formula considering corporate
profitability and specific performance goals. Any bonus awards
under the annual bonus plan are in the sole discretion of the
Company and are not guaranteed. Executive shall be eligible for a
pro-rated 2007 bonus to be paid in 2008.
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(c)
In addition to Executive’s Base Salary, Executive, during the
Employment Term, shall be eligible to participate in any stock or
stock option plan offered to other executives of the Company,
subject to the terms of such plan, as it may be amended from time
to time. In addition, subject to its development and subsequent
approval by the Company’s Board of Directors, the
Company’s shareholders and the appropriate stock exchange,
Executive will be eligible to participate in a new long-term
incentive program. Pursuant to this program, and subject to the
approval as specified herein, Executive shall be granted
twenty-four thousand (24,000) Restricted Stock Units and thirty-six
thousand (36,000) Share Appreciation Rights. These incentives shall
vest at twenty-five percent (25%) per year for four (4) years,
except in the event of a Change in Control (as defined in the plan
or program master agreements governing the issuance of Restricted
Stock Units and Share Appreciation Rights), in which case these
incentives shall be subject to accelerated treatment such that all
outstanding Share Appreciation Rights held by Executive shall
become vested and exercisable and all restrictions on
Executive’s Restricted Stock Units shall lapse upon the
occurrence of such Change in Control, unless an exception to such
accelerated treatment is set forth under such plan or program
agreements and such exception applies to all other executive
officers of Parent and/or the other Related Companies holding
similar incentives.
(d)
Executive shall be entitled to three (3) weeks paid vacation
for each calendar year in which the Executive is employed under
this Agreement, in accordance with the Company’s vacation
policy as it may be established and amended from time to time by
the Company. For any partial calendar year during which Executive
is employed under this Agreement, he shall be entitled to a
prorated amount of paid vacation, based on number of weeks worked
in the calendar year pursuant to the Company’s then existing
current vacation policy. Notwithstanding the foregoing, the Company
acknowledges and agrees to honor Executive’s previously
planned 14-day vacation commencing on November 9, 2007.
(e)
The Company shall reimburse Executive for all reasonable expenses
incurred by Executive in the course of performing Executive’s
duties under this Agreement which are consistent with the
Company’s policies with respect to travel, entertainment and
other business expenses, as they may be amended from time to time,
subject to the Company’s requirements with respect to
reporting and documentation of such expenses.
(f)
Executive will be entitled to all benefits provided by the Company
in accordance with the plans and practices of the Company
applicable to Executive, as they may be amended from time to time,
such as medical and dental insurance, life insurance and short-term
and long-term disability insurance at company expense during the
Employment Term. Health insurance will become effective on
December 1, 2007.
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5.
Termination of Employment and Related Compensation .
(a)
The Employment Term of this Agreement shall terminate upon;
(i) the expiration of the
Initial Term or Renewal Term (whichever then applies) if one party
gives the other party written notice of intent not to renew this
Agreement at least one hundred and eighty (180) days before
the expiration of the Initial Term or Renewal Term then in effect;
or
(ii) the occurrence of one of
the following early termination events:
(A) Executive’s death or
permanent disability or incapacity (as determined by the governance
committee of the Parent’s Board of Directors in their good
faith judgment);
(B) the mutual agreement of the
Company and Executive;
(C) Company’s termination of
this Agreement for Cause or without Cause; or
(D) Executive’s termination of
this Agreement for Good Reason or without Good Reason.
(b)
If the Employment Term is terminated and Executive’s
employment with Company ends because the Company terminated
Executive’s employment without Cause or Executive’s
employment is terminated by Executive for Good Reason or the
Company elects not to renew or extend this Agreement at the end of
the Initial Term or any Renewal Term, then Executive shall be
entitled to receive:
(i) the Severance Payment;
and
(ii) Executive’s Base
Salary and the Vehicle Allowance earned through the date of
termination, all accrued, unused vacation days and any and all
vested and earned (in accordance with the applicable plan or
program, including, without limitation, any accelerated vesting
treatment under such plan or program as the result of a Change in
Control (as defined in such plan or program) but unpaid amounts
under the applicable incentive and/or deferred compensation plans;
and
(iii) a continuation of any
health insurance benefits provided or sponsored by the Company that
Executive was participating (for himself and his dependents) in
immediately prior to termination for one (1) year upon
substantially the same terms and conditions as from time to time
are applicable to the senior executives of the Company. If the
Executive loses a health insurance benefit that Executive
participated in prior to termination because Executive cannot
continue to participate in the Company’s plan due to
circumstances outside of Executive’s control, the Company
shall provide Executive sums monthly that
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are sufficient
to cover Executive’s expense (on an after-tax basis) in
securing a substantially similar, substitute health insurance
benefit; provided, however, that Company shall not be required to
pay Executive more than that required to secure comparable
coverage. Notwithstanding the foregoing, in the event that the
Executive becomes eligible to participate in the health and welfare
plans of another employer or the Executive becomes eligible for
Medicare coverage, the Company’s obligation to provide
continued coverage hereunder shall cease; and
(iv) The amounts payable
pursuant to paragraph 5(b)(i) shall be payable in one lump sum
payment within thirty (30) days following termination of the
Employment Term. The amounts payable pursuant to paragraphs 5(b)(i)
and (iii) shall not be due and owing unless and until (a)
Executive shall have executed and delivered to the Company a
release of any and all claims against the Related Companies (and
their respective present and former officers, directors, employees
and agents — collectively the “ Released Parties
”) and a covenant not to sue the Released Parties, all in
form and substance as provided by counsel to the Company (the
“ Release ”) and any waiting period or
revocation period provided by law for the effectiveness of such
Release shall have expired without Executive’s having revoked
such Release, and (b) Executive is not in material violation
of his obligations under this Agreement (including, without
limitation, those in Sections 6-8, and 21). In the event
Executive shall decline or fail for any reason to execute and
deliver such Release, or is in material violation of an obligation
created by this Agreement, then Executive shall be entitled to
receive only those amounts provided pursuant to Paragraph 5(c)
below.
(c)
If the Employment Term is terminated and Executive’s
employment with the Company is ended by the Company for Cause, by
Executive without Good Reason or due by the death or Disability of
the Executive, then Executive shall be entitled to receive:
(i) Executive’s Base
Salary and Vehicle Allowance through the date of such termination,
and all accrued, unused vacation days; and
(ii) vested and earned (in
accordance with the Company’s applicable plan or program) but
unpaid amounts under incentive and/or deferred compensation plans,
and other employer programs of the Company in which Executive
participates.
The foregoing
sums shall be paid in accordance with the Company’s normal
payment policies except where earlier payment is required by
applicable law.
(d)
Except as otherwise provided herein, fringe benefits and bonuses
hereunder (if any) which accrue or are payable on a date after the
termination of the Employment Term shall cease upon such
termination and shall not be payable in whole or in part except
medical coverage if for disability, incapacity or retirement.
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(e)
If Executive elects to terminate his employment with Company
through exercising his right not to renew under
Paragraph 5(a)(i) or through any other means and either:
(i) Executive does not have a Good Reason to do so; or
(ii) Executive fails to give Company written notice of the
alleged Good Reason prior to terminating his employment; then
Executive’s termination shall be considered a termination by
Executive without Good Reason. In any case, the Company reserves
the right to pay for Executive’s loyalty by continuation of
then existing pay, incentives and benefits for a period of one
(1) year.
(f)
In the event of a Change in Control, Company, at its sole expense,
shall cause its independent auditors promptly to review all
payments, distributions and benefits that have been made to or
provided to, and are to be made to or provided to, Executive under
this Agreement, and any other agreement and plan benefiting
Executive, to determine the applicability of Section 4999 of
the United States Internal Revenue Code of 1986, as amended (the
“ Code ”). If Company’s independent
auditors determine that any such payments, distributions or
benefits are subject to excise taxes as provided under
Section 4999 of the Code (the “ Excise Tax
”), then such payment, distributions, or benefits (the
“ Original Payment(s) ”) shall be increased by
an amount (the “ Gross-up Amount ”) such that,
after the Company withholds all taxes due, including any excise and
employment taxes imposed on the Gross-up Amount, Executive will
retain a net amount equal to the Original Payment(s) less income
and employment taxes, if any, imposed on the Original Payment(s).
To facilitate the calculation of the applicable excise tax,
Executive agrees to provide Company’s auditors with copies of
Executive’s Forms W-2 for the tax years they deem necessary
for their use in determining the application of Section 4999
and calculating any amounts payable under this provision.
Company’s auditors will perform the calculations in
conformance with the foregoing provisions and provide Executive
with a copy of their calculation. The intent of the parties is that
Company shall be solely responsible for, and shall pay, any Excise
Tax on the Original Payment(s) and Gross-up Amount and any income
and employment taxes (including, without limitation, penalties and
interest) imposed on any Gross-up Amount. If no determination by
Company’s auditors is made prior to the time Executive is
required to file a tax return reflecting any portion of the
Original Payment(s), Executive will be entitled to receive a
Gross-up Amount calculated on the basis of the Original Payment(s)
Executive reports in such tax return, within thirty (30) days
of the filing of such tax return. Executive agrees that, for the
purposes of the foregoing sentence, Executive is not required to
file a tax return until Executive has obtained the maximum number
and length of filing extensions available. If any tax authority
finally determines that a greater Excise Tax should be imposed upon
the Original Payment(s) than is determined by Company’s
independent auditors or reflected in Executive’s tax returns,
Executive shall be entitled to receive the full Gross-up Amount
calculated on the basis of the additional amount of Excise Tax
determined to be payable by such tax authority (including related
penalties and interest) from Company within thirty (30) days
of such determination as long as Executive has taken all reasonable
actions to minimize any such amounts. If any tax authority finally
determines the Excise Tax to be less than the amount taken into
account hereunder in calculating the Gross-up Amount, Executive
shall repay to Company, within thirty (30) days of
Executive’s receipt of a refund resulting from that
determination, the portion of the Gross-up Amount attributable to
such reduction (plus the refunded portion of Gross-up Amount
attributable to the Excise Tax and federal, state and local income
and employment taxes imposed on the Gross-up Amount being repaid,
less any additional income tax resulting from such refund).
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(g)
It is the intention of the parties that no payment or entitlement
pursuant to this Agreement will give rise to any adverse tax
consequences to the Executive under 26 U.S.C. § 409A. The
Agreement shall be interpreted to that end and, consistent with
that objective and notwithstanding any provision herein to the
contrary, the Company may unilaterally take any action it deems
necessary or desirable to amend any provision herein to avoid the
application of 26 U.S.C. § 409A if such action will only
benefit the Executive. Further, no effect shall be given to any
provision herein in a manner that reasonably could be expected to
give rise to adverse tax consequences under that provision. Should
either party determine that there is a reasonable possibility that
the text of this Agreement could give rise to such adverse tax
consequences, the parties agree to negotiate in good faith to amend
the Agreement to obviate the possibility of such
consequences.
6.
Confidential Information . “Confidential
Information” means the Related Companies’ Trade Secrets
(as defined below) and other material, ob
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