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Exhibit
10.48
EXECUTIVE EMPLOYMENT
AGREEMENT
This Executive Employment Agreement
(“Agreement”), dated December 4, 2007
(“Effective Date”), is between Catcher, Inc. a Delaware
corporation (the “Company”), and Gary Haycox
(“Executive”).
| 1. |
POSITION, RESPONSIBILITIES, AND TERM |
a. Position.
Executive is employed by the Company to render services to the
Company in the positions of Executive Vice President and Chief
Technical Officer of the Company and Catcher Holding, Inc
(“Catcher Holdings”) or other executive management
position as requested by the Company’s or Catcher
Holdings’ Chief Executive Officer (“CEO”) and/or
respective Boards of Directors (“Board”). Executive
shall perform such duties and responsibilities as are normally
related to Executive’s positions as Executive Vice President
and Chief Technology Officer in accordance with the standards of
the industry and any additional duties now or hereafter assigned to
Executive by the CEO and/or the Board (collectively
“Services”). Subject to approval and initial
appointment by the Board, Executive shall be appointed as a member
of Catcher Holding’s Board. Executive’s continued
position as a member of the Board shall be subject to
Executive’s reelection from time to time by the stockholders
of Catcher Holdings. Executive shall abide by the rules,
regulations, and practices as adopted or modified from time to time
in the Company’s sole discretion. Executive will devote
Executive’s full time efforts to the provision of Services
under this Agreement, except as set forth in paragraph
(b) below.
b. Other
Activities. Except upon the prior written consent of the
Company, Executive will not, during the term of this Agreement:
(i) be employed elsewhere; (ii) engage, directly or
indirectly, in any other business activity (whether or not pursued
for pecuniary advantage) that might interfere with
Executive’s duties and responsibilities hereunder or create a
conflict of interest with the Company; or (iii) acquire any
interest of any type in any other business which is in competition
with the Company, provided, however, that the foregoing shall not
be deemed to prohibit the Executive from acquiring solely as an
investment up to five percent (5%) of the outstanding equity
interests of any publicly-held company.
c. No Conflict.
Executive represents and warrants that Executive’s execution
of this Agreement and performance of Services under this Agreement
will not violate any obligations Executive may have to any other
employer, person or entity, including any obligations to keep in
confidence proprietary information, knowledge, or data acquired by
Executive in confidence or in trust prior to becoming an employee
of the Company.
d. Term of
Employment . The term of this Agreement shall be for:
(i) a period of three years after the Effective Date
(“Term”); or (ii) the date upon which
Executive’s employment is terminated in accordance with
Section 3. Where the Agreement is terminated upon expiration
of the Term, the Company shall pay to Executive all compensation to
which Executive is entitled up through the effective date of
termination according to its normal payroll practices, and the
Company shall not have any further obligations under this
Agreement.
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| 2. |
COMPENSATION AND BENEFITS |
a. Base Salary.
In consideration of the Services to be rendered under this
Agreement, the Company shall pay Executive a gross salary at the
rate of Fourteen Thousand Five Hundred And Eighty-Three Dollars And
Thirty-Three Cents ($14,583.33) per month, less applicable
withholdings (“Base Salary”). The Base Salary shall be
paid in accordance with the Company’s normal payroll
practices.
b. Annual
Bonus. In further consideration of the Services to be rendered
under this Agreement, Executive shall be eligible to receive an
annual bonus between zero percent (0%) and fifty percent
(50%) of Executive’s annual Base Salary based on
achievement of goals and objectives established by the Company
(“Annual Bonus”). Any Annual Bonus earned by Executive
will be paid within two-and-one-half months of the end of the year
in which it was earned. Executive must remain employed with the
Company through the end of the calendar year at issue in order to
be eligible to receive the Annual Bonus.
c. Stock
Options . In further consideration of the Services to be
rendered under this Agreement, Catcher Holdings shall grant
Executive an option to purchase three hundred thousand
(300,000) shares of Catcher Holdings’ Common Stock
(“Stock Option”) vesting over a three (3) year
period as follows: (i) 1/3 of the shares shall vest on the
first anniversary of the grant date; and (ii) 1/24 of the
remaining shares or equity interest shall vest monthly thereafter
commencing with the date which is one (1) month after the
first anniversary of the grant date, until all shares are fully
vested. Executive’s entitlement to the Stock Option is
conditioned upon the Board’s approval of the Stock Option and
Executive’s signing of Catcher Holdings’ Stock Option
Agreement. The Stock Option is subject to the terms of the Stock
Option Agreement, the 2005 Stock Incentive Plan and related
documents adopted by Catcher Holdings’ Board (“Stock
Option Documents”).
d. Restricted
Stock . In further consideration of the Services to be
rendered under this Agreement, Catcher Holdings shall grant
Executive one hundred thousand (100,000) shares of Catcher
Holdings’ Restricted Stock (“Restricted Stock”)
vesting over a three (3) year period as follows: (i) 1/3
of the shares shall vest on the first anniversary of the grant
date; and (ii) 1/24 of the remaining shares or equity interest
shall vest monthly thereafter commencing with the date which is one
(1) month after the first anniversary of the grant date, until
all shares are fully vested. Executive’s entitlement to the
Restricted Stock is conditioned upon Catcher Holdings’
Board’s approval and Executive’s signing of Catcher
Holdings’ Restricted Stock Award Agreement. The Restricted
Stock is subject to the terms of the Restricted Stock Award
Agreement, the Catcher Holdings, Inc. 2005 Stock Incentive Plan and
related documents adopted by Catcher Holdings’ Board and is
subject to compliance with all applicable federal and state
securities laws (“Restricted Stock Documents”).
Executive acknowledges that Catcher Holdings will not grant the
Restricted Stock until such time as an S-8
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Registration Statement covering such
shares of Restricted Stock has been filed with the Securities and
Exchange Commission and is effective. Executive understands and
acknowledges that Executive is solely responsible for payment of
all taxes relating to the Restricted Stock and will not request any
assistance from the Company in the payment of these
taxes.
e. Stock Bonus
. In consideration of achieving the objectives set forth in
this paragraph, Catcher Holdings shall grant Executive up to two
hundred fifty thousand (250,000) fully vested shares of
Catcher Holdings’ Common Stock (the “Stock
Bonus”) as follows: (i) sixty two thousand five hundred
(62,500) shares of the Stock Bonus shall be granted upon the
realization by Vivato Networks, Inc., Catcher Holdings’
wholly owned subsidiary (“Vivato”), of revenue in
excess of $625,000 for the fiscal quarter ended December 31,
2007 and (ii) an additional one share of the Stock Bonus shall
be granted upon the realization by Vivato of each $2.00 of revenue
in excess of $625,000 for the fiscal quarter ended
December 31, 2007 up to the full amount of the Stock Bonus
upon the realization by Vivato of $1,000,000 of revenue for the
fiscal quarter ended December 31, 2007. The Stock Bonus is
subject to the terms of the Catcher Holdings, Inc. 2005 Stock
Incentive Plan and related documents adopted by Catcher
Holdings’ Board and is subject to compliance with all
applicable federal and state securities laws (“Stock Bonus
Documents”). Executive acknowledges that Catcher Holdings
will not grant the Stock Bonus until such time as an S-8
Registration Statement covering such shares of the Stock Bonus has
been filed with the Securities and Exchange Commission and is
effective. Executive understands and acknowledges that Executive is
solely responsible for payment of all taxes relating to the Stock
Bonus and will not request any assistance from the Company in the
payment of these taxes.
f. Employment
Benefit Plans. In further consideration of the Services to be
rendered under this Agreement, Executive will be entitled to
participate in retirement plans, group health, hospitalization and
disability or other insurance plans, and other employee welfare
benefit plans generally made available to other similarly-situated
employees of the Company, in accordance with the benefit plans
established by the Company, and as may be amended from time to time
in the Company’s sole discretion.
g. Expenses.
The Company will pay or reimburse Executive for all normal and
reasonable travel and entertainment expenses incurred by Executive
in connection with Executive’s responsibilities to the
Company upon submission of proper vouchers and documentation in
accordance with the Company’s expense reimbursement
policy.
The employment of Executive shall be
“at-will” at all times. The Company or Executive may
terminate Executive’s employment with the Company at any
time, without any advance notice, for any reason or no reason at
all, notwithstanding anything to the contrary contained in or
arising from any statements, policies or practices of the Company
relating to the employment, discipline or
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termination of its employees. Following
the termination of Executive’s employment, the Company shall
pay to Executive all compensation to which Executive is entitled up
through the date of termination. Thereafter, all obligations of the
Company under this Agreement shall cease other than those set forth
in Section 4.
| 4. |
COMPANY TERMINATION OBLIGATIONS |
h. Termination by
Company for Cause. Where the Company terminates
Executive’s employment for Cause, all obligations of the
Company under this Agreement shall cease. For purposes of this
Agreement, “Cause” shall mean: (i) Executive
engages in a material act of misconduct, including but not limited
to misappropriation of trade secrets, fraud, or embezzlement;
(ii) Executive commits a crime involving dishonesty, breach of
trust, or physical harm to any person; (iii) Executive
breaches this Agreement; (iv) Executive refuses to implement
or follow a lawful policy or directive of the Company;
(v) Executive engages in malfeasance demonstrated by
Executive’s failure to perform Executive’s job duties;
(vi) Executive violates a Company policy or procedure which is
materially injurious to the Company, including violation of the
Company’s policy concerning sexual harassment, discrimination
or retaliation; or (vii) Executive defames the Company, its
employees, or its Board members in any manner; provided, however,
that to the extent the termination of Executive’s employment
for Cause is pursuant to (iii), (iv), and/or (v) and the event
constituting Cause can be cured, the Company shall provide written
notice to Executive of the Cause for termination of
Executive’s employment and Executive shall thereafter have
thirty (30) days to cure such event to the reasonable
satisfaction of the Board.
i. Termination by
Company without Cause. Where the Company terminates
Executive’s employment without Cause, and Executive’s
employment is not terminated due to death or Disability (as defined
below), Executive will be eligible to receive continued payment of
Executive’s Base Salary at the time of Executive’s
termination according to the Company’s normal payroll
practices, less applicable withholdings, for six months
(“Severance Period”) (“Severance”).
Executive’s eligibility to receive the Severance set forth in
this Section 4(b) is conditioned on Executive having first
signed a release agreement in the form attached as Exhibit A
and an agreement not to compete with the business of the Company
during the Severance Period. All other obligations of the Company
under this Agreement shall cease.
j. Termination Due
to Disability. Executive’s employment shall terminate
automatically if Executive becomes Disabled. Executive shall be
deemed Disabled if Executive is unable for medical reasons to
perform Executive’s essential job duties for either ninety
(90) consecutive calendar days or one hundred twenty
(120) business days in a twelve (12) month period and,
within thirty (30) days after a notice of termination is given
to Executive, Executive has not returned to work. If
Executive’s employment is terminated by the Company due to
Executive’s Disability, all obligations of the Company under
this Agreement shall cease.
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k. Termination Due
to Death. Executive’s employment shall terminate
automatically upon Executive’s death. If Executive’s
employment is terminated due to Executive’s death, all
obligations of the Company under this Agreement shall
cease.
l.
Executive’s Resignation . Executive may resign
Executive’s employment at any time during the Term of this
Agreement pursuant to Section 3, and thereafter, all
obligations of the Company under this Agreement shall
cease.
m. Delayed
Payments . In the event that Section 409A
(“409A”) of the Internal Revenue Code of 1986, as
amended (the “Code”), applies to any compensation with
respect to Executive’s termination, payment of that
compensation shall be delayed if Executive is a “specified
employee,” as defined in 409A(a)(2)(B)(i), and such delayed
payment is required by 409A. Such delay shall last six
(6) months from the date of Executive’s termination. On
the day following the end of such six-month period, the Company
shall make a catch-up payment to Executive equal to the total
amount of such payments that would have been made during the
six-month period but for this Section 4(f).
| 5. |
EXECUTIVE TERMINATION OBLIGATIONS |
n. Return of
Property. Executive agrees that all property (including without
limitation all equipment, tangible proprietary information,
documents, records, notes, contracts and computer-generated
materials) furnished to or created or prepared by Executive
incident to Executive’s employment belongs to the Company and
shall be promptly returned to the Company upon termination of
Executive’s employment.
o. Resignation and
Cooperation. Upon termination of Executive’s employment,
Executive shall be deemed to have resigned from all offices and
directorships then held with Catcher Holdings and the Company.
Following any termination of employment, Executive shall cooperate
with the Company in the winding up of pending work on behalf of the
Company and the orderly transfer of work to other employees.
Executive shall also cooperate with the Company in the defense of
any action brought by any third party against the Company that
relates to Executive’s employment by the Company.
p. Continuing
Obligations. Executive understands and agrees that
Executive’s obligations under Sections 6 and 7 herein
(including Exhibits B and C) shall survive the termination of
Executive’s employment for any reason and the termination of
this Agreement.
| 6. |
INVENTIONS AND PROPRIETARY INFORMATION |
Executive agrees to sign and be bound by
the terms of the Proprietary Information and Inventions Agreement,
which is attached as Exhibit B (“Proprietary Information
Agreement”).
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Executive agrees to sign and be bound by
the terms of the Arbitration Agreement, which is attached as
Exhibit C.
| 8. |
AMENDMENTS; WAIVERS; REMEDIES |
This Agreement may not be amended or
waived except by a writing signed by Executive and by the CEO.
Failure to exercise any right under this Agreement shall not
constitute a waiver of such right. Any waiver of any breach of this
Agreement shall not operate as a waiver of any subsequent breaches.
All rights or remedies specified for a party herein shall be
cumulative and in addition to all other rights and remedies of the
party hereunder or under applicable law.
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ASSIGNMENT; BINDING EFFECT |
q. Assignment.
The performance of Executive is personal hereunder, and Executive
agrees that Executive shall have no right to assign and shall not
assign or purport to assign any rights or obligations under this
Agreement. This Agreement may be assigned or transferred by the
Company; and nothing in this Agreement shall prevent the
consolidation, merger or sale of the Company or a sale of any or
all or substantially all of its assets.
r. Binding
Effect. Subject to the foregoing restriction on assignment by
Executive, this Agreement shall inure to the benefit of and be
binding upon each of the parties; the affiliates, officers,
directors, agents, successors and assigns of the Company; and the
heirs, devisees, spouses, legal representatives and successors of
Executive.
All notices or other communications
required or permitted hereunder shall be made in writing and shall
be deemed to have been duly given if delivered: (a) by hand;
(b) by a nationally recognized overnight courier service; or
(c) by United States first class registered or certified mail,
return receipt requested, to the principal address of the other
party, as set forth below. The date of notice shall be deemed to be
the earlier of (i) actual receipt of notice by any permitted
means, or (ii) five business days following dispatch by
overnight delivery service or the United States Mail. Executive
shall be obligated to notify the Company in writing of any change
in Executive’s address. Notice of change of address shall be
effective only when done in accordance with this
paragraph.
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Company’s Notice
Address:
Catcher, Inc.
44084 Riverside Parkway, Suite
320
Leesbur, Virginia 20176
Executive’s Notice
Address:
_______________________
_______________________
If any provision of this Agreement shall
be held by a court or arbitrator to be invalid, unenforceable, or
void, such provision shall be enforced to the fullest extent
permitted by law, and the remainder of this Agreement shall remain
in full force and effect. In the event that the time period or
scope of any provision is declared by a court or arbitrator of
competent jurisdiction to exceed the maximum time period or scope
that such court or arbitrator deems enforceable, then such court or
arbitrator shall reduce the time period or scope to the maximum
time period or scope permitted by law.
All amounts paid under this Agreement
shall be paid less all applicable state and federal tax
withholdings and any other withholdings required by any applicable
jurisdiction.
This Agreement shall be governed by and
construed in accordance with the laws of the State of
Virginia.
This Agreement shall be construed as a
whole, according to its fair meaning, and not in favor of or
against any party. Sections and section headings contained in this
Agreement are for reference purposes only, and shall not affect in
any manner the meaning or interpretation of this Agreement.
Whenever the context requires, references to the singular shall
include the plural and the plural the singular.
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OBLIGATIONS SURVIVE TERMINATION OF
EMPLOYMENT |
Executive agrees that any and all of
Executive’s obligations under this Agreement, including but
not limited to Exhibits B and C, shall survive the termination of
employment and the termination of this Agreement.
This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original
of this Agreement, but all of which together shall constitute one
and the same instrument.
Each party represents and warrants that
such party has the right, power and authority to enter into and
execute this Agreement and to perform and discharge all of the
obligations hereunder; and that this Agreement constitutes the
valid and legally binding agreement and obligation of such party
and is enforceable in accordance with its terms.
This Agreement is intended to be the
final, complete, and exclusive statement of the terms of
Executive’s employment by the Company and may not be
contradicted by evidence of any prior or contemporaneous statements
or agreements, except for agreements specifically referenced herein
(including the Proprietary Information Agreement attached as
Exhibit B, the Arbitration Agreement attached as Exhibit C, the
Stock Option Documents, Restricted Stock Documents and Stock Bonus
Documents). To the extent that the practices, policies or
procedures of the Company, now or in the future, apply to Executive
and are inconsistent with the terms of this Agreement, the
provisions of this Agreement shall control. Any subsequent change
in Executive’s duties, position, or compensation will not
affect the validity or scope of this Agreement.
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EXECUTIVE ACKNOWLEDGEMENT |
EXECUTIVE ACKNOWLEDGES EXECUTIVE HAS
HAD THE OPPORTUNITY TO CONSULT LEGAL COUNSEL CONCERNING THIS
AGREEMENT, THAT EXECUTIVE HAS READ AND UNDERSTANDS THE AGREEMENT,
THAT EXECUTIVE IS FULLY AWARE OF ITS LEGAL EFFECT, AND THAT
EXECUTIVE HAS ENTERED INTO IT FREELY BASED ON EXECUTIVE’S OWN
JUDGMENT AND NOT ON ANY REPRESENTATIONS OR PROMISES OTHER THAN
THOSE CONTAINED IN THIS AGREEMENT.
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I N W
ITNESS W HEREOF , the parties
have duly executed this Agreement as of the date first written
above.
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| C ATCHER , I NC
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Gary Haycox |
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Dated: |
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EXHIBIT A
GENERAL RELEASE OF
CLAIMS
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EXHIBIT A
GENERAL RELEASE OF
CLAIMS
This General Release of
Claims (hereinafter “Release”) is entered into this
[ ]
day of
[ ],
by and between Gary Haycox (“Executive”) and Catcher,
Inc. a Delaware corporation (“Company”).
RECITALS
A. On December 4, 2007,
Executive became employed by the Company according to the terms and
conditions of the Executive Employment Agreement between the
parties (“Employment Agreement”).
B. On or about
[ ],
Executive’s employment with the Company was terminated
pursuant to Section 3 of the Employment Agreement.
C. According to the terms and
conditions of the Employment Agreement, Executive is entitled to
certain severance payments and other benefits if Executive executes
this Release. By execution hereof, Executive understands and agrees
that this Release is a compromise of doubtful and disputed claims,
if any, which remain untested; that there has not been a trial or
adjudication of any issue of law or fact herein; that the terms and
conditions of this Release are in no way to be construed as an
admission of liability on the part of the Company and that the
Company denies any liability and intends merely to avoid litigation
with this Release.
AGREEMENT
NOW THEREFORE FOR MUTUAL CONSIDERATION,
the receipt and sufficiency of which the parties hereto
acknowledge, the parties agree as follows:
1. Executi
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