EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT (the
“Agreement”), entered into this 2nd day of July, 2009,
by and between BLINDSPOT ALERT, INC., a Nevada corporation (the
“Employer”), and TRAVIS BOND
(“Employee”).
WITNESSETH
WHEREAS, the Employer desires to employ, and Employee
desires to work for Employer;
WHEREAS, the Employer desires to provide fair and
reasonable benefits to Employee on the terms and subject to the
conditions set forth in this Agreement; and
WHEREAS, the Employer desires reasonable protection of
their confidential business and customer information which they
will develop over the years at substantial expense and assurance
that Employee will not compete with the Employer for a reasonable
period of time after termination of his employment with the
Employer, except as otherwise provided herein.
NOW, THEREFORE, in consideration of the foregoing premises, the
mutual covenants and undertakings herein contained and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties, each intending to be
legally bound, covenant and agree as follows:
1.
Employment . Upon the terms and subject to the
conditions set forth in this Agreement, the Employer employs
Employee as the Employer’s Chief Operating Officer and
Employee accepts such employment.
2.
Positions . Employee agrees to serve as the
Employer’s Chief Operating Officer and to perform such duties
in those offices as may reasonably be assigned to him by the
Employer’s Board of Directors, Chief Executive Officer or the
President not inconsistent with the nature of Employee’s
position and such duties which are of the character as those
generally associated with such officer’s title.
3.
Term . The term of this Agreement shall begin on
the date Employer purchases the software assets of WQN, Inc. as
more fully described in the Asset Purchase Agreement between
Employer and WQN, Inc. (the “Effective Date”) and shall
end on the date which is one (1) year following such date;
provided, however, that such term shall be extended automatically
for an additional year on each anniversary of the Effective Date,
unless either party hereto gives sixty (60) days written notice to
the other party not to so extend prior to an anniversary (such
term, including any extension thereof shall herein be referred to
as the “Term”). Notwithstanding the
foregoing, this Agreement shall automatically terminate (and the
Term of this Agreement shall thereupon end) without notice when
Employee attains 65 years of age.
4.
Salary . Employee shall receive an annual minimum
salary of One Hundred and Fifty Thousand Dollars ($150,000.00)
(“Base Compensation”) payable at regular intervals in
accordance with the Employer’s normal payroll practices in
effect from time to time. Employee shall be eligible to
receive a bonus as determined by Employer’s Board of
Directors at their sole discretion. Additionally,
Employee will be eligible to participate in Employer’s stock
option plan to the same extent as other executives, officers and
employees of Employer, and to receive stock options thereunder in
such amounts and at such times as the Board of Directors may
determine in its discretion.
5.
Stock Options . On the Effective Date, Employee
shall receive 100,000 stock options in accordance with the
Non-qualified Stock Plan that has been adopted by the
Employer. The options will vest over a 5 year term with
Twenty percent (20%) vesting at the end of each Twelve (12) month
period. The grant of the options shall be contained in
the stock option agreement.
6.
Benefit Programs . During the term of this
Agreement, Employee shall be entitled to participate in or receive
benefits (collectively, the “Benefits”) comparable to
the other employees of the Employer, if such benefits are offered
by the Employer. The foregoing does not obligate the
Employer to provide benefits of any type.
7.
General Policies . All matters relating to the
employment of Employee by the Employer not specifically addressed
in this Agreement shall be subject to the general policies
regarding employees of the Employer in effect from time to
time.
8.
Termination . Subject to the respective
continuing obligations of the parties, Employee’s employment
by the Employer may be terminated prior to the expiration of the
Term of this Agreement as follows:
(a) The
Employer, by action of its Board of Directors and upon written
notice to Employee, may terminate Employee’s employment with
the Employer for cause. For purposes of this
subsection 8(a ), “cause” shall be defined as
(i) Employee’s personal dishonesty of a material nature
affecting Employee’s ability to perform his duties under this
Agreement, (ii) Employee’s incompetence in the
performance of his duties and obligations under this Agreement,
(iii) Employee’s willful misconduct or gross negligence,
(iv) Employee’s breach of fiduciary duty involving personal
profit, (v) Employee’s intentional failure to perform
stated duties, (vi) Employee’s conviction of any
criminal offense which involves dishonesty or breach of trust or
conviction of any felony, (vii) any requirement of a
government agency or authority having jurisdiction over the
Employer, or (viii) any material violation by Employee of any
material provision or covenant of this Agreement not cured by
Employee within thirty (30) days of Employee’s receipt of
notice from the Employer of such material violation.
(b) The
Employer, by action of its Board of Directors, may terminate
Employee’s employment with the Employer without cause at any
time; provided, however, that the “date of termination”
for purposes of determining benefits payable to Employee under
subsection 9(b ) hereof shall be the date 90 days after
Employee receives written notice of such termination.
(c) Employee,
by written notice to the Employer, may terminate his employment
with the Employer immediately for good reason. For
purposes of this subsection 8(c ), “good reason”
shall be defined as any material violation by the Employer of any
material provision or covenant of this Agreement.
(d) Employee’s
employment with Employer shall terminate in the event of
Employee’s death or disability. For purposes hereof,
“disability” shall mean the physical or mental
inability of Employee to perform his obligations hereunder,
provided that notice of any termination by the Employer because of
Employee’s “disability” shall have been given to
Employee prior to the full resumption by him of the performance of
such duties.
(e) Nothing
contained in this Agreement shall impair, affect or change any
requirements otherwise imposed upon the Employer or Employee by
applicable statute, law, rule, regulation or other legal
requirement, including, without limitation, Employee’s COBRA
rights upon termination of employment.
9.
Termination Payments . In the event of
termination of Employee’s employment pursuant to Section
8 hereof, compensation shall continue to be paid to Employee as
follows:
(a) In
the event of termination pursuant to subsection 8(a) or 8(b)
, compensation provided for herein (including Base Compensation)
shall continue to be paid, and Employee shall continue to
participate in the benefit, retirement, and compensation plans and
other perquisites as provided in Sections 6 and 7 hereof,
for a period of 3 months after the date set forth in the notice of
termination. Any benefits, if in place, payable under
insurance, health, retirement and bonus plans as a result of
Employee’s participation in such plans through such date
shall be paid when due under those plans.
(b) In
the event of termination pursuant to subsection 8(c) ,
compensation provided for herein (including Base Compensation) at
the rate in effect at the time of termination shall continue to be
paid to Employee and Employee shall continue to participate in the
benefit, retirement and compensation plans and other perquisites as
provided in Sections 6 and 7 hereof, through the date of
termination. Throughout the period during which
Employee’s compensation shall continue hereunder, the
Employer shall continue to contribute the employer portion toward
the cost of such benefits and other perquisites in a manner
consistent with the applicable terms of the governing plan
documents and if applicable, insurance contracts, and otherwise in
accordance with the procedures and policies in place prior to such
termination through the date such payments, benefit coverages and
perquisites are to be continued hereunder. Payment of
compensation during this period, including Base Compensation, shall
be made pursuant to the applicable payroll practices then utilized
by the Employer, and shall commence on the first payroll payment
date occurring after the date of termination of Employee’s
employment.
(c) In
the event of termination pursuant to subsection 8(d ),
compensation provided for herein (including Base Compensation)
shall continue to be paid and Employee shall continue to
participate in the benefit, retirement, and compensation plans and
other perquisites as provided in Sections 6 and 7 hereof in
a manner consistent with the applicable terms of the governing plan
documents, (i) in the event of Employee’s death, through the
date of death, or (ii) in the event of Employee’s disability,
through the date of proper notice of disability as required by
subsection 8(d ). Any benefits payable under
insurance, health, retirement and bonus plans as a result of the
Employer’s participation in such plans through such date
shall be paid when due under those plans.
10.
Notice of Termination . Any termination of
Employee’s employment with Employer as contemplated by
Section 8 hereof, except in the circumstances of
Employee’s death, shall be communicated by written
“Notice of Termination” by the terminating party to the
other party hereto. Any “Notice of
Termination” pursuant to subsections 8(a), 8(c) or
8(d) shall indicate the specific provisions of this Agreement
relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for such
termination.
11.
Regulatory Oversight . All obligations under this
Agreement may be terminated except to the extent determined that
the continuation of the Agreement is necessary for the continued
operation of the Employer by order of any state or federal
regulatory agency with supervision of the Employer, unless stayed
by appropriate proceedings, and the Employer shall be under no
obligation to perform any of its obligations hereunder if it is
informed in writing by any state or federal regulatory agency with
supervision of the Employer that performance of its obligations
would constitute an unsafe or unsound business practice.
12.
Death . Should Employee die after termination of
his employment with the Employer while any amounts are payable to
him hereunder, this Agreement shall inure to the benefit of and be
enforceable by Employee’s executors, administrators, heirs,
distributees, devisees and legatees and all amounts payable
hereunder shall be paid in accordance with the terms of this
Agreement to Employee’s devisee, legatee or other designee
or, if there is no such designee, to his estate.
13.
Notices . For purposes of this Agreement, notices
and all other communications provided for herein shall be in
writing and shall be deemed to have been given when delivered or
mailed by United States registered or certified mail, return
receipt requested, postage prepaid, addressed as
follows:
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If to
Employee:
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Travis
Bond
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1070 Timberidge
Lane
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Bartonville, TX
76226
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If to the
Employer:
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Rowland W. Day
II
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Chief Executive
Officer
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Blindspot
Alert, Inc.
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1 Hampshire
Court
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Newport Beach,
CA 92660
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Facsimile: (949) 642-1274
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rday@rdaylaw.com
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or to such
other address as either party hereto may have furnished to the
other party in writing in accordance herewith, except that notices
of change of address shall be effective only upon
receipt.
14.
Noncompetition . Employee covenants that,
commencing on Employee’s termination of employment and ending
on the date that is two years after Employee ceases to be an
employee or consultant to Employer or any of its subsidiaries (the
“ Noncompetion Period ”), Employee shall not,
and shall cause its affiliates not to, in any state in which the
Employer or any of its subsidiaries currently conducts or conducted
its business (the “ Territory ”), engage, either
directly or indirectly, as a principal or for such Employee’s
own account or solely or jointly with others, or as a stockholder
in any corporation or joint sock association, in any business that
competes with the businesses of the Employer or any of its
subsidiaries (“ Compete ”). The
foregoing shall not be breached as result of (i) such Employee
ownership or other right to acquire by Employee (or any of its
affiliates) of not more than an aggregate of one percent (1%) of
any class of stock or other securities which are listed on a
nationally or internationally recognized stock exchange or NASDAQ
of a person engaged, directly or indirectly, in a business that
competes with the businesses of the Employer or any of its
subsidiaries.
15.
Non-Disparagement . Employee covenants that such
Employee shall not, and shall cause its affiliates not to disparage
or encourage or induce others to disparage the Employer or any of
its subsidiaries or affiliates or any of its or their past and
present employees, directors, products or services. For
the purpose of this Agreement, the term “disparage”
includes, without limitation, comments or statements to the press,
media or to any third party with the intent to harm the character
or reputation of Employer, its affiliates, or any employee,
consultant, agent, director, distributor, independent contractor or
multilevel participant.
16.
Cooperation . Upon the receipt of reasonable
notice by Employee (including notice on behalf of the Employer by
its outside counsel), Employee agrees that he will respond and
provide information with regard to matters in which he has
knowledge as a result of his ownership of and, or, and employment
with Employer, and will provide reasonable assistance to Employer
and its subsidiaries and affiliates and their respective
representatives in defense of any claims that may be made against
the Employer or any of its subsidiaries or affiliates.
17.
Employee Confidentiality and Invention Assignment Agreement
. Employee shall execute the attached Employee
Confidentiality and Invention Assignment Agreement which is
incorporated into this Agreement as Exhibit A.
18.
Governing Law . The validity, interpretation, and
performance of this Agreement shall be governed by the laws of the
State of California, without reference to the choice of law
principles or rules thereof, except to the extent that federal law
shall be deemed to apply.
19.
Modification . No provision of this agreement may
be modified, waived or discharged unless such waiver, modification
or discharge is agreed to in writing signed by the Employer and
Employee. No waiver by either party hereto at any time
of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such
other party shall be deemed a wavier of dissimilar provisions or
conditions at the same or any prior subsequent time. No
agreements or representation, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made
by either party which are not set forth expressly in this
Agreement.
20.
Validity . The invalidity or unenforceability of
any provisions of this Agreement shall not affect the validity or
enforceability of any other provisions of this Agreement
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