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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.
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(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).
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(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
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