Employment Agreement - AllCom USA Inc. and John Cheney
AllCom USA, Inc
10390 Commerce Center Drive, Suite 250
Rancho Cucamonga, CA 91730
John Cheney
12341 Four Winds Way,
Victorvilie, CA 92392
THIS AGREEMENT is made and entered into effective February 01, 2003 (the
"Effective Date") by and between AllCom USA, Inc., a corporation duly organized
and existing under the laws of the State of Nevada with current place of
business at 10390 Commerce Center Drive, Suite 250, Rancho Cucamonga, CA 91730
hereinafter referred to as ALLCOM, and John Cheney, hereinafter referred to as
"Executive."
RECITALS
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A. These Recitals shall be considered a part of this Agreement and shall
explain the general nature and purposes of ALLCOM's business and
Executive's rights, powers, and obligations under this Agreement Any
interpretation or construction of this Agreement shall be considered in
light of these Recitals.
B. ALLCOM is engaged in the business of offering and providing
telecommunications services consisting of voice, data, video, internet, and
other services, primarily to carriers, commercial business & residential
users though the resale & agent channel.
C. ALLCOM desires to employ Executive and Executive desires to be employed by
ALLCOM as its Sales Director, on the terms and conditions set forth in this
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Agreement and any attachment or exhibit connected hereto.
D. For the reasons set forth above, and in consideration of the mutual
promises and agreements set forth in this Agreement, ALLCOM and Executive
agree as follows:
ARTICLE 1
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EMPLOYMENT
1.01 ALLCOM hereby employs and hires Executive and Executive hereby accepts and
agrees to such hiring and employment, subject and pursuant to the general
supervision, advice and direction of the Chief Executive Officer (CEO) and
Board of Directors.
1.02 Executive shall perform such duties as are customarily performed by persons
holding such positions in other, same, or similar businesses or enterprises
as that engaged in by ALLCOM. Executive shall have the following enumerated
powers, the exercise of which shall be unfettered unless Executive's
actions constitute a gross dereliction of duty or a clear violation of
ALLCOM's strategic business plan.
a. to manage and direct the day-to-day sales of ALLCOM.
1.03 Executive shall at all times faithfully, industriously and to the best of
his abilities, experience and talents perform all of those duties that may
be required of and from him pursuant to the express and implied terms of
this Agreement, to the reasonable satisfaction of ALLCOM.
ARTICLE 2
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2.01 The term "Term" of Executive's employment shall be for a period of one (1)
year from the Effective Date, subject to the provisions set forth in this
Agreement. Upon the expiration of this initial one-year term, this
Agreement shall automatically renew in one (1) year periods unless either
Executive or ALLCOM
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provides the other with written notice of intention not to renew at least
thirty (30) days prior to the expiration of the then current term.
2.02 Notwithstanding the provisions of Section 2.01, if ALLCOM is acquired by
another party or if an Initial Public Offering (IPO) of ALLCOM is
consummated, Executive shall continue his employment under this Agreement.
ARTICLE 3
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COMPENSATION AND BENEFITS
3.01 SALARY. Executive shall be paid an initial annualized salary of Seventy Two
Thousand Dollars ($72,000) that shall be payable in semi-monthly
installments of $3,000, Executive's salary shall be increased in accordance
with the bonus plan as described below.
BONUS. Bonus will be based on performance of ALLCOM, payable as follows: 1)
when gross billing reaches $500,000 a month, the semi-monthly salary
payments increase to $3,500 2) when gross billing reaches $750,000 a month,
the semi-monthly salary payments increase to $4,000, 3) when gross billing
reaches $1,000,000 a month, the semi-monthly salary payments increase to
$5,000.
OTHER BENEFITS. Executive shall receive such fringe benefits as are, and
may be from time to time made available to other employees of ALLCOM. Such
benefits include, but are not necessarily limited to, a medical (including
family members), plus any pre-approved business expenses as outlined below
EXPENSE REIMBURSEMENT (justified business expenses). Executive shall
receive reimbursement for pre-approved business expenses. Such business
expenses may include, but are not necessarily limited to, certain vehicle
expenses, cellular, telephone and high-speed internet access and business
related travel expenses.
Upon receipt of an itemized accounting of any expenses incurred by
Executive in connection with performance of his duties on behalf of ALLCOM,
Executive shall be reimbursed promptly. By pre-arrangement, expenses can be
covered on a company credit card, in which case Executive will provide
necessary documentation.
ARTICLE 4
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DUTIES AND RESPONSIBILITIES
4.01 While employed by ALLCOM on a full-time basis, Executive will not engage in
any other gainful employment or business activity without the written
consent of ALLCOM. While Executive renders services to ALLCOM, Executive
also will not assist any person or organization in competing with ALLCOM,
or in preparing to compete with ALLCOM or in hiring any employees of
ALLCOM.
ARTICLE 5
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VACATION AND LEAVE OF ABSENCE
5.01 Executive is entitled to twenty (20) business days of paid vacation for
every twelve months, in addition to ALLCOM's normal holidays and other
non-business days. Executive shall be granted reasonable requests for
leaves of absences. Sick days shall be afforded in accordance with ALLCOM's
stated personnel policies.
ARTICLE 6
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TERMINATION
6.01 Executive may tender his resignation prior to the end of the Term by
providing one month written notice of his intention to resign. If such
resignation is accepted by ALLCOM, Executive shall be entitled to retain
all stock options which have been provided to him hereunder as of the date
of actual termination and to
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receive all salary, bonuses, vacation and sick leave earned or accrued up
to said date. In the event ALLCOM refuses to accept Executive's
resignation. Executive must abide by the terms of this Agreement.
6.02 Any other provisions of this Agreement notwithstanding, ALLCOM may
terminate Executive's employment without notice and without any further
compensation obligations, including without limitation any severance pay,
if the termination is based on cause, fraud, embezzlement, securities law
violation, or other gross misconduct which causes material economic damage
to ALLCOM or material damage to the business reputation of ALLCOM. Such
termination shall terminate Executive's rights to any and all further
compensation, bonus, severance or benefits as set forth in this Agreement,
effective the last day of Executive's employment with ALLCOM.
6.03 Should ALLCOM terminate Executive's employment for any reason other than
set forth in Section 6.02, or an outright sale, Executive shall be paid as
severance, immediately upon the date set for termination, all salary, bonus
and the cash equivalent of all other benefits set forth in this Agreement,
as well as the issuance of all stock options or warrants called for
hereunder for the balance of the term.
ARTICLE 7
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MISCELLANEOUS
7.01 GOVERNING LAW: This Agreement shall be governed according to the laws of
the State of California and venue shall be in the County of Los Angeles,
California.
7.02 SUCCESSORS: This Agreement is personal to Executive and ALLCOM and neither
may assign or transfer any part of the rights or duties hereunder, to any
other person or entity, except in the event of a bona fide sale or merger
of ALLCOM.
7.03 WAIVER: The waiver by either parry of the breach or nonperformance of the
other hereunder shall not operate or be construed as a waiver of any
further breach or nonperformance of this Agreement.
7.04 MODIFICATION: This Agreement shall not be changed or modified except by a
written document executed by both parties hereto.
7.05 ATTORNEYS FEES. In the event enforcement of this Agreement becomes
necessary, Executive is entitled to reasonable attorney's fees, costs and
expenses in connection with such proceeding, in addition to any other
relief that may be granted, if and only if Executive is the prevailing
party to such dispute.
7.06 DISPUTES: Any dispute or controversy arising under, out of, in connection
with or in relation to this Agreement or the employment of EXECUTIVE and
ALLCOM or the termination of employment of Executive with ALLCOM, including
any claims under Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act, the Americans With Disabilities Act, the
Family and Medical Leave Act, and any other federal, state or local
statute, regulation or ordinance pertaining to employment, shall be finally
determined and settled by arbitration. Arbitration shall be initiated by
one party making written demand upon the other party and simultaneously
filing the demand together with required fees in the office of the American
Arbitration Association in Los Angeles, California. The arbitration
proceeding shall be conducted by a single arbitrator in accordance with the
National Rules for the Resolution of Employment Disputes of the American
Arbitration Association. The arbitration award shall be a final and binding
determination of the dispute and shall be fully enforceable as an
arbitration award in any court having jurisdiction and venue over such
parties. The prevailing party (as determined by the arbitrator) shall be
awarded by the arbitrator such party's attorney's fees, costs and expenses
in connection with such proceeding, in addition to any other relief that
may be granted.
7.07 NON COMPETE COVENANT: Should this Agreement be terminated voluntarily by
Executive or involuntarily by the Board for any breach of duties as
outlined in Article 6.03 of this Agreement. Executive agrees to not to
compete for a period of 1 year. Non Compete is to be defined as taking any
of the Company's customers. Executive understands and agrees to cease
business practices which adversely
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impact the Company's business, upon written notice by the Company. Under no
circumstance or interpretation of Article 7.07 shall this covenant be
construed to restrict Executive's ability to make a living in the
telecommunications field.
7.08 PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
Like all Company employees, Executive will be required, as a condition to
employment with the Company, to sign the Company's standard Proprietary
Information and Inventions Agreement, a copy of which is attached hereto as
Exhibit A.
7.09 AMENDMENT
This Agreement may not be amended or modified except by an express written
agreement signed by you and a duly authorized officer of ALLCOM.
IN WITNESS WHEREOF, the parties have executed this instrument the day and year
first above written. The undersigned warrants he is competent and authorized to
act on behalf of the Board of Directors, and has received sufficient votes to
enter into this Agreement. The undersigned Executive warrants that he is
competent and authorized to enter into this Agreement.
AllCom USA, Inc.
By: /s/ Larry Wilcox /s/ John Cheney
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Larry Wilcox, Chief Executive Officer John Cheney