EMPLOYMENT
AGREEMENT
This EMPLOYMENT
AGREEMENT ("Agreement") is entered into as of this 27th day
December, 2006, by and among Migo Software, Inc., a Delaware
corporation (the "Company") and Michael Hummell (the
"Executive").
RECITALS
The Company
desires to employ Executive as Senior Vice President, Business
Development, and Executive desires to be so employed by the Company
on the terms and subject to the conditions hereinafter set
forth.
NOW THEREFORE,
in consideration of the mutual covenants set forth herein and for
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto do hereby
mutually agree as follows:
1.
Employment Agreement
. On the terms and conditions set
forth in this Agreement, the Company agrees to employ the Executive
and the Executive agrees to be employed by the Company for the
Employment Period set forth in Section 2 hereof and in the position
and with the duties set forth in Section 3 hereof. Terms used
herein with initial capitalization are defined in Section
21
below.
2.
Term . The initial
term of employment under this Agreement shall be for a term (the
"Initial Term") from January 1, 2007 through and including December
31, 2007. Unless either party terminates the Executive's employment
by way of written notice in accordance with Section 11 given to the
other party at least 30 days prior to the Expiration Date, the term
of employment thereafter shall be extended indefinitely, unless and
until either party provides 30 days written notice to the other
party in accordance with Section 11 that such indefinite term shall
end at the end of such 30 day notice period. The parties'
obligations under Sections 7, 9, 10 and 11 hereof shall survive the
expiration or termination of the Employment Period.
3.
Position and Duties .
The Executive shall serve as Senior Vice President, Business
Development of the Company during the Employment Period. As Senior
Vice President, Business Development of the Company, the Executive
shall render executive, policy and other management services to the
Company of the type customarily performed by persons serving in a
similar capacity. The Executive shall perform such duties as the
Chairman of the Board may from time to time reasonably determine
and assign to the Executive provided that such duties do not
constitute a material departure from the services and
responsibilities routinely provided by the Executive. The Executive
shall devote the Executive's reasonable best efforts and
substantially full business time to the performance of the
Executive's duties and the advancement of the business and affairs
of the Company during the Employment Period.
4.
Place of Performance
. In connection with the Executive's
employment by the Company during the Employment Period, the
Executive's primary place of employment and work location shall be
as designated by the Company except for reasonable travel on
Company business.
5.
Compensation
.
(a)
Base Salary and Bonus
. During the Employment Period, the
Company shall pay to the Executive an annual base salary (the "Base
Salary"), which initially shall be at the rate of $200,000.00 per
year. The Base Salary shall be reviewed no less frequently than
annually and may be increased (and not decreased, other than in an
across-the-board reduction in the base salaries of all or
substantially all of the employees of Company's services business
in the United States) at the discretion of the Board. If the
Executive's Base Salary is increased, the increased amount shall be
the Base Salary for the remainder of the Employment Period. The
Base Salary for the 2007 year shall be payable as follows: $100,000
by way of the loan described in paragraph (b) below and the
remaining $100,000 in monthly or in such other installments as
shall be consistent with the Company's payroll procedures in effect
from time to time. In addition to the Base Salary, Executive shall
be eligible for an annual bonus in the discretion of the
Compensation Committee of the Board of Directors, and shall be
based upon factors related to the Executive's performance and the
success of the business, as established by the Compensation
Committee.
(b)
Loan . Simultaneously with the execution of this
Agreement, the Company shall loan Executive the sum of $100,000 to
be represented by a Promissory Note delivered by Executive to the
Company. The Company agrees to forgive one-twenty fourth (1/24) of
the principal balance of the Note as of the end of each bi-monthly
pay period of employment during 2007, such that the Note will be
forgiven in full upon the completion of one year of employment with
the Company.
(c)
Stock Option Grants
. During the Employment Period, the
Executive shall be eligible to participate in the Company’s
Stock Option Plan in accordance with the terms and conditions
therein. As of the Effective Time, the Executive shall be granted
initial stock options for 200,000 shares of common stock of the
Company at an exercise price of $0.20 per share. Said stock options
shall be subject to the following vesting: (i) 33% of such options
shall vest 12 months after the date hereof; (ii) the remaining
options shall vest monthly over a period of 24 months (subject to
accelerated vesting)); (iii) Accelerated Vesting shall occur if
Executive is terminated not for Good Cause (as defined below), if
Executive resigns for Good Reason (as defined below), or upon a
Change of Control (as defined in the Stock Option Plan).
(d)
Benefits . During the Employment Period, the Executive
will be entitled to all employee benefits and perquisites made
available to similarly situated senior executive employees of the
Company. Nothing contained in this Agreement shall prevent the
Company from changing carriers or from effecting modifications in
insurance coverage for the Executive.
(e)
Vacation; Holidays .
The Executive shall be entitled to all public holidays observed by
the Company and vacation days in accordance with the applicable
vacation policies for senior executives of the Company, which shall
be taken at a reasonable time or times.
(f)
Withholding Taxes
and Other Deductions . To the extent required by law, the
Company shall withhold from any payments due to the Executive under
this Agreement any applicable federal, state or local taxes and
such other deductions as are prescribed by law or Company
policy.
6.
Expenses . The Executive is expected and is authorized,
subject to the business expense policies as determined by the
Board, to incur reasonable expenses in the performance of his
duties hereunder, including the costs of entertainment, travel, and
similar business expenses incurred in the performance of his
duties. The Company shall promptly reimburse the Executive for all
such expenses in accordance with Company policy.
7.
Confidentiality; Work
Product .
(a)
Information . The Executive acknowledges that the
information, observations and data obtained by the Executive
concerning the business and affairs of the Company and its
Affiliates and their predecessors during the course of the
Executive's performance of services for, or employment with, any of
the foregoing persons (whether or not compensated for such
services) are the property of the Company and its Affiliates,
including information concerning acquisition opportunities in or
reasonably related to the business or industry of the Company or
its Affiliates of which the Executive becomes aware during such
period. Therefore, the Executive agrees that he will not at any
time (whether during or after the Employment Period) disclose to
any unauthorized person or, directly or indirectly, use for the
Executive's own account, any of such information, observations,
data or any Work Product or Copyrightable Work (as defined below)
without the Board's consent, unless and to the extent that the
aforementioned matters become generally known to and available for
use by the public other than as a direct or indirect result of the
Executive's acts or omissions to act or the acts or omissions to
act of other senior or junior management employees of the Company
and its Affiliates. The Executive agrees to deliver to the Company
at the termination of the Executive's employment, or at any other
time the Company may request in writing (whether during or after
the Employment Period), all memoranda, notes, plans, records,
reports and other documents, regardless of the format or media (and
copies thereof), relating to the business of the Company and its
Affiliates and their predecessors (including, without limitation,
all acquisition prospects, lists and contact information) which the
Executive may then possess or have under the Executive's
control.
(b)
Intellectual Property
. The Executive acknowledges that
all inventions, innovations, improvements, developments, methods,
designs, analyses, drawings, reports, trade secrets, know-how,
ideas, computer programs, and all similar or related information
(whether or not patentable) that relate to the actual or
anticipated business, research and development or existing or
future products or services of the Company or its Affiliates that
are conceived, developed, made or reduced to practice by the
Executive while employed by the Company or any of its predecessors
("Work Product") belong to the Company and the Executive hereby
assigns, and agrees to assign, all of the Executive's rights, title
and interest in and to the Work Product to the Company. Any
copyrightable work ("Copyrightable Work") prepared in whole or in
part by the Executive in the course of the Executive's work for any
of the foregoing entities shall be deemed a "work made for hire"
under the copyright laws, and the Company shall own all rights
therein. To the extent that it is determined, by any authority
having jurisdiction, that any such Copyrightable Work is not a
"work made for hire, " the Executive hereby assigns and agrees to
assign to Company all the Executive's rights, title and interest,
including without limitation, copyright in and to such
Copyrightable Work, The Executive shall promptly disclose such Work
Product and Copyrightable Work to the Board and perform all actions
reasonably requested by the Board (whether during or after the
Employment Period) to establish and confirm the Company's ownership
(including, without limitation, assignments, consents, powers of
attorney and other instruments).
(c)
Enforcement . The
Executive acknowledges that the restrictions contained in Section
7(a) hereof are reasonable and necessary, in view of the nature of
the Company's business, in order to protect the legitimate
interests of the Company, and that any violation thereof would
result in irreparable injury to the Company. Therefore, the
Executive agrees that in the event of a breach or threatened breach
by the Executive of the provisions of Section 7(a) hereof, the
Company shall be entitled to obtain from any court of competent
jurisdiction, preliminary or permanent injunctive relief
restraining the Executive from disclosing or using any such
confidential information. Nothing herein shall be construed as
prohibiting the Company from pursuing any other remedies available
to it for such brea
