Exhibit 10.4
EMPLOYMENT
AGREEMENT
This EMPLOYMENT AGREEMENT (this
“Agreement”) is made as of the 31st day of March 2006,
by and between Advanced Tel, Inc., a California corporation (the
“Company”), and David Singer, an individual
(“Employee”), and is made with respect to the following
facts:
R E C I T A L
S
A. The Company and the Employee wish
to ensure that the Company will receive the benefit of
Employee’s loyalty and service.
B. In order to help ensure that the
Company receives the benefit of Employee’s loyalty and
service, the parties desire to enter into this formal Employment
Agreement to provide Employee with appropriate compensation
arrangements and to assure Employee of employment
stability.
C. The parties have entered into
this Agreement for the purpose of setting forth the terms of
employment of the Employee by the Company.
NOW, THEREFORE
, in consideration of the premises
and mutual covenants herein contained, THE PARTIES HERETO AGREE
AS FOLLOWS :
1. Employment of Employee and
Duties . The Company hereby hires Employee and Employee
hereby accepts employment upon the terms and conditions described
in this Agreement. The Employee will initially serve as the
President of Advanced Tel, Inc., a wholly owned subsidiary of
InterMetro Communications, Inc., a California corporation
(“InterMetro”), with all of the duties, privileges and
authorities usually attendant upon such office, including but not
limited to responsibility for the day-to-day supervision and
management of the operation of the Company. Subject only to
Employee’s right to perform his duties for Company from
Orange County, the Chief Executive Officer may, at his/her sole
discretion, modify Employee’s title, duties, privileges and
authorities at any time after execution of this Agreement. Subject
to (a) the general supervision of the Board of Directors and
the Chief Executive Officer of the Company, and (b) the
Employee’s duty to report to the Board of Directors and the
Chief Executive Officer periodically, as specified by the Chief
Executive Officer from time-to-time, Employee will have all of the
authority to perform his employment duties for the Company. A
change in Employee’s title with the Company or to his duties,
privileges, or authorities shall not be a breach of any provision
of this Agreement.
2. Time and Effort .
Employee agrees to devote his full working time and attention to
the management of the Company’s business affairs, the
implementation of its strategic plan, as determined by the Chief
Executive Officer, and the fulfillment of his duties and
responsibilities as the President of Advanced Tel, Inc. Expenditure
of a reasonable amount of time for personal matters and charitable
activities will not be deemed to be a breach of this Agreement,
provided that those activities do not materially interfere with the
services required to be rendered to the Company under this
Agreement.
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3. The Company’s
Authority . Employee agrees to comply with the
Company’s rules and regulations as adopted by the
Company’s Board of Directors regarding performance of his
duties, and to carry out and perform those orders, directions and
policies established by the Company with respect to his engagement.
Employee must promptly notify the Company’s Chief Executive
Officer of any objection he has to the Board’s directives and
the reasons for such objection.
4. Noncompetition by
Employee . In addition to any other noncompetition
covenants of Employee to the Company pursuant to that certain Stock
Purchase Agreement, dated March 30, 2006, by and between the
Company, Employee, and InterMetro (the “Stock Purchase
Agreement”), Employee agrees that during the term of this
Agreement and during any period that Employee is receiving any
payments or benefits from the Company, Employee will not directly
or indirectly, whether (a) as employee, agent, consultant,
employer, principal, partner, officer or director; (b) holder
of five percent or more of any class of equity securities or five
percent or more of the aggregate principal amount of any class of
debt, notes or bonds of a company with publicly traded equity
securities; or (c) in any other individual or representative
capacity whatsoever, in each case for his own account or the
account of any other person or entity, engage in any business or
trade competing with any of the businesses or trades of the
Company, its parent, subsidiaries, or affiliates, which they
conduct as of the closing date of the Stock Purchase Agreement,
during the term of this Employment Agreement, or as of the
termination of this Employment Agreement, anywhere in the world in
which the Company, its parent, subsidiaries, or affiliates are
carrying on such trade or business.
5. Nondisclosure Covenant and
Proprietary Information, Confidentiality, Loyalty, and
Nonsolicitation.
5.1 Proprietary Information,
Confidentiality, Loyalty, and Nonsolicitation . Employee
agrees to execute the Employee Proprietary Information,
Confidentiality, Loyalty, and Nonsolicitation Agreement (the
“PCLN Agreement”) attached to this Agreement as Exhibit
A. This Agreement and the PCLN Agreement shall be interpreted in
tandem to confer upon the Company the maximum
protection.
5.2 Nondisclosure Covenant
. Employee hereby covenants and agrees to maintain in strictest
confidence all Confidential Information, as that term is defined in
Exhibit A to this Agreement, in trust for the Company, its
successors and assigns. During the period of Employee’s
employment with the Company and at any and all times following
Employee’s termination of employment for any reason,
including without limitation Employee’s voluntary resignation
or involuntary termination with or without cause, Employee agrees
not to misappropriate, or disclose or make available to anyone
outside Company’s organization, any Confidential Information,
as that term is defined in Exhibit A to this Agreement, or anything
relating thereto without the prior written consent of the Company,
which consent may be withheld by the Company for any reason or no
reason at all.
6. Noninterference and
Nonsolicitation Covenants . In further reflection of the
Company’s important interests in its proprietary information
on trade and customer and employee relationships, Employee agrees
that, (a) during the thirty (30) month period following
the termination of Employee’s employment with the Company
“for cause” or as a result of his voluntary resignation
before the end of the term of this Agreement under circumstances
where
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the Company is not in breach of this Agreement,
Employee will not directly or indirectly, for or on behalf of any
person, firm, corporation or other entity, interfere with any
contractual or other business relationships that the Company has
with any of its customers, clients, service providers or materials
suppliers as of the date of Employee’s termination of
employment, and (b) during the thirty (30) month period
following the termination of Employee’s employment with the
Company “for cause” or as a result of his voluntary
resignation before the end of the term of this Agreement under
circumstances where the Company is not in breach of this Agreement,
Employee will not directly or indirectly solicit or induce any
employee or consultant of the Company to terminate his/her
employment or consulting relationship with Company.
7. Term of Agreement .
This Agreement will commence to be effective on the date first
above written (the “Commencement Date”), and will
continue until a date three years from the Commencement Date,
unless terminated sooner as provided in Section 13
hereof.
8. Compensation .
During the term of this Agreement, the Company will pay the
following compensation to Employee:
8.1 Annual Salary .
Employee will be paid a fixed salary of $185,000 per year, payable
in two installments per month on or about the 5th and the 20
th
day of each month,
commencing on April 20, 2006 for the first period after the
Commencement Date of this Agreement.
8.2 Annual Job Performance
Bonus . Employee’s job performance will be reviewed
by the Board of Directors of the Company on an annual basis and if
recommended by the Compensation Committee of the Company’s
Board of Directors and if approved by the Company’s full
Board of Directors, Employee may receive an an
