EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement"), effective January 1, 1999, by and
between MULTI-LINK TELECOMMUNICATIONS, INC., a Colorado corporation (the
"Company"), and XXXXX X. XXXXXXX (the "Employee"). The Company hereby continues
the employment of the Employee and the Employee hereby accepts continued
employment with the Company on the terms and conditions hereinafter set forth.
1. Term. Subject to the provisions for termination as provided in Section 4
of this Agreement, the term of this Agreement shall commence on January 1, 1999,
and shall terminate on January 1, 2002.
2. Nature of Employment. The Company hereby continues the employment of the
Employee as the President and Chief Operating Officer of the Company to perform
such duties and have such powers as the Employee substantially performed for the
Company on the date of this Agreement as well as those additional duties and
powers as may be agreed upon between the Board of Directors of the Company and
the Employee. The Employee shall perform the Employee's duties hereunder
primarily in the Denver, Colorado metropolitan area. The Board of Directors of
the Company may not materially change the Employee's duties or positions without
the Employee's consent. The Employee agrees to abide by the Articles of
Incorporation, Bylaws, Company policies and the provisions of this Agreement,
and agrees to devote the Employee's full business time and best efforts to the
Employee's employment under this Agreement as is reasonably required. The
Employee may carry on outside activities so long as those activities do not
conflict with nor compete with the Employee's job responsibilities and corporate
duties. The Employee shall, at all times, faithfully with due diligence and to
the best of the Employee's ability, experience and talent, perform all the
duties hereunder.
3. Compensation, Vacations and Expenses.
a. Salary. The Company shall pay to the Employee a salary during the
term of this Agreement in accordance with the amount set forth on Schedule
A hereof. This amount may be increased as determined by the Board of
Directors of the Company through an amendment to Schedule A.
b. Vacations and Fringe Benefits. The Employee shall be entitled to an
annual vacation of at least the minimum vacation time established by the
Company for its employees. The Employee shall further be entitled to
participate in and receive the benefits provided under any employee benefit
program which may be adopted and maintained by the Company (including,
without limitation, those described on Schedule A) and for which the
Employee is eligible by virtue of Employee's employment hereunder, but only
as and to the extent the Employee would otherwise be eligible as provided
in any said program.
c. Reimbursement of Expenses. The Employee is authorized to incur
reasonable expenses while performing the Employee's duties under this
Agreement, including expenses for entertainment, travel, automobile, and
similar items incurred on behalf of the Company in an amount consistent
with Company policies. The Company will reimburse the Employee upon the
presentation by the Employee of itemized accounts of such reasonable and
appropriate expenditures.
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4. Termination of Agreement.
a. Termination by Employee Upon Notice. The Employee may terminate
this Agreement without cause upon 30 days prior written notice to the
Company. In such event, the Employee shall continue to render the services
required under this Agreement and shall be paid on the regular payment
dates the compensation set forth in Schedule A up to the date of
termination.
b. Termination by Employee Upon Change of Location. The Employee may
terminate this Agreement in the Employee's sole discretion upon five days
prior written notice to the Company in the event that the Company requires
the Employee to perform over 25% of the Employee's work in person at a
location outside of the Denver, Colorado metropolitan area, in which event
the Company shall pay the Employee, in a single lump-sum payment
("Termination Payment") which shall be paid within 30 days after the
effective date of the Employee's termination hereunder, an amount equal to
the greater of (i) the Employee's then salary and other compensation
payable to the Employee pursuant to this Agreement for the remaining term
hereof, or (ii) the Employee's salary and other compensation that the
Employee was entitled to receive pursuant to this Agreement during the 12
months immediately preceding the Employee's termination hereunder. In such
event, the Employee shall continue to render the services required under
this Agreement and shall be paid on the regular payment dates the
compensation set forth in Schedule A up to the date of termination.
c. Termination by the Company Without Cause. The Company may terminate
this Agreement without cause upon 30 days prior written notice to the
Employee, so long as the Company pays the Employee the Termination Payment
described in Section 4.b above in a single lump-sum payment which shall be
paid within 30 days after the effective date of the Employee's termination
hereunder. In such event, the Employee shall continue to render the
services required under this Agreement and shall be paid on the regular
payment dates the compensation set forth in Schedule A up to the date of
termination.
d. Termination by the Company for Cause. If the Employee materially
fails or refuses to observe the provisions of this Agreement or if the
Company determines in its sole discretion that the Employee is not
satisfactorily performing any of the duties required of the Employee under
this Agreement, the Company shall give the Employee written notice of such
failure or refusal and, if the Employee does not correct such failure or
refusal within five (5) days after the giving of such notice, this
Agreement may be terminated by the Company immediately upon written notice
of such termination to the Employee and upon payment by the Company to the
Employee for all compensation accrued under this Agreement to the date of
termination. In the event of the Employee's fraud, misappropriation or
embezzlement of funds, or conviction for any crime punishable as a felony,
the Company may terminate this Agreement immediately upon written notice of
such termination to the Employee and upon payment by the Company to the
Employee for all compensation accrued under this Agreement to the date of
termination. In the event of a termination of the Employee's employment for
cause in accordance with this Section 4.b, the Company shall have no
further obligation to the Employee. However, termination of the Employee's
employment for cause shall not terminate or extinguish the Employee's
obligation or liability to pay to the Company or any of its affiliates any
amount owed to them by the Employee, including, but not limited to, any
amounts misappropriated, embezzled or otherwise obtained by the Employee by
reason of any of the occurrences referred in this Section 4.d without
prejudice to any other rights or remedies of the Company or it affiliates
at law or in equity.
e. Termination Upon Death of Employee. This Agreement shall
automatically terminate in the event of the Employee's death. In such case,
any accrued compensation or benefits shall inure to the estate of the
Employee and the payment thereof shall be the only liability the Company
shall have to the Employee's estate.
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5. Employee Actions.
a. Employee Shall Not Disclose Information. The Employee recognizes
and acknowledges that the list of the customers, as it may exist from time
to time, of the Company or of its subsidiaries and affiliates (collectively
"Multi-Link"), and any other proprietary or confidential information,
including, but not limited to financial information and information
pertaining to the software, marketing and sales operations, financing
operations and potential acquisitions (hereinafter "Confidential
Information"), used by the Company or Multi-Link, in their businesses are
valuable and unique assets of the Company and Multi-Link. Except as
permitted by the next sentence, the Employee will not during or for a
period of three years after the term of the Employee's employment, disclose
any Confidential Information to any person, firm, corporation, association
or other entity for any reason or purpose whatsoever without the prior
written consent or authorization of the boards of directors of the Company
and Multi-Link. Notwithstanding the prohibitions contained in the foregoing
sentence, the Employee shall be permitted to disclose such information
during the term of his employment to other persons employed by or providing
consulting services to the Company or Multi-Link who have a need to know
such information for a proper purpose related to the business of the
Company or Multi-Link. Upon termination of the Employee's employment by the
Company, the Employee shall neither take nor retain any papers, customer
lists, manuals, files, or other documents or copies thereof belonging to
the Company or Multi-Link. To the extent any items of Confidential
Information constitute trade secrets under Colorado law, Employee's
obligations of confidentiality and nondisclosure shall continue to survive
after said three year period to the greatest extent permitted by applicable
law. These rights of the Company are in addition to those the Company has
under the common law or applicable statutes for the protection of trade
secrets.
b. Non-Compete. The Employee hereby covenants and agrees that the
Employee will not, without the prior written consent of the Board of
Directors of the Company, directly or by assisting others, whether
individually or through any entity controlled by the Employee, during the
term of this Agreement and for a period of six months after the termination
of this Agreement for any reason (the "Restrictive Period"), on Employee's
own behalf or in the service or on behalf of others, whether or not for
compensation, engage in any activity that involves leasing, marketing,
selling or operating voice mail systems in any state of the United States
where the Company is engaged in the business of leasing, marketing, selling
or operating voice mail systems or in any country outside of the United
States where the Company is engaged in the business of leasing, marketing,
selling or operating voice mail systems. In addition, during the
Restrictive Period, the Employee shall not have any controlling interest in
any person, firm, corporation or business, through a subsidiary or parent
entity or other entity which engages in leasing, marketing, selling or
operating voice mail systems. Notwithstanding the foregoing, the Employee
may own shares of other competing companies whose securities are publicly
traded, so long as such securities do not constitute five percent or more
of the outstanding securities of any such company.
c. Non-Solicitation of Company Employees. During the Employee's
employment and for six months thereafter, Employee shall not solicit or in
any manner encourage employees of the Company or of Multi-Link to leave the
employ of the Company or Multi-Link. The foregoing prohibition applies only
to employees with whom the Employee had material contact pursuant to
Employee's duties during Employee's employment term. "Material contact"
means interaction between the Employee and another employee of the Company
or Multi-Link: (i) with whom Employee actually dealt; or (ii) whose
employment or dealings with the Company or Multi-Link or services for the
Company or Multi-Link were handled, coordinated or supervised by the
Employee.
d. Non-Solicitation of Company Customers. During the Employee's
employment and for six months immediately following cessation of Employee's
employment with the Company for any reason, Employee shall not, on
Employee's own behalf or on behalf of any person, partnership, association,
corporation or business organization, entity or enterprise (except Company
and Multi-Link), solicit any customer of the Company or Multi-Link, or any
representative of any such customer with a view to selling or providing any
product or service competitive or potentially competitive with any product
or service sold or provided by the Company or Multi-Link during the two
year period immediately preceding cessation of Employee's employment with
the Company, provided that the restrictions set forth herein shall apply
only to customers of the Company or Multi-Link, or representatives of such
customers with whom Employee had material contact during such two year
period. "Material contact" exists between Employee and each of the existing
customers of the Company or Multi-Link: (i) with whom Employee actually
dealt; or (ii) whose dealings with the Company or Multi-Link were handled,
coordinated or supervised by Employee.
e. Intellectual Property. The Employee shall disclose to the Company
all ideas and business plans developed by the Employee during the term of
the Employee's employment with the Company which relate to the business
conducted by the Company or by Multi-Link. All patents, patent
applications, patent licenses, formulas, inventions, improvements, designs,
discoveries, processes, software, copyrights, know-how, proprietary
information, rights, trademarks, or trade names, or future improvements
thereto developed or conceived of by the Employee during any period of
employment with the Company shall be promptly disclosed to, and all rights
with respect thereto shall be assigned by the Employee to the Company in
consideration of the remuneration paid or payable to the Employee
hereunder, and shall be considered work made for hire for the Company
within the meaning of Title 17 of the United States Code. The Employee
acknowledges that "software" as used in this Section 5.e shall include
without limitation all ideas, concepts, know-how, methods, techniques,
structures, information and materials relating to the software including
source code, object and load modules, requirements specifications, design
specifications, design notes, flow charts, decoding sheets, annotations,
documentation, and the structures, organization, sequence, designs,
formulas and algorithms which reside in the software and which are not
generally known to the public or within the industries of trades in which
the Company competes.
f. Remedies. The Employee acknowledges and agrees that Employee's
obligations provided in this Section 5 are necessary and reasonable in
order to protect the Company, Multi-Link and their respective businesses
and the Employee expressly agrees that monetary damages would be inadequate
to compensate the Company or Multi-Link for any breach by Employee of
Employee's covenants and agreements set forth herein. Accordingly, Employee
agrees and acknowledges that any such violation or threatened violation of
this Section 5 will cause irreparable injury to the Company and Multi-Link
and that, in addition to any other remedies that may be available, in law,
in equity or otherwise, the Company and Multi-Link may be entitled to
obtain injunctive relief against the prospective breach of this Section 5
or the continuation of any such breach by the Employee without the
necessity of proving actual damages.
g. Construction. In the event that any provision of this Section 5
should ever be deemed to exceed the time, geographic, or other limitations
permitted by applicable law, then such provision shall be reformed to the
maximum time geographic, or other limitations permitted by applicable law.
The provisions of this Section 5 shall be applicable for the period
indicated and shall survive the termination of this Agreement.
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6. General Matters.
a. Governing Law. This Agreement shall be governed by the laws of the
State of Colorado and shall be construed in accordance therewith.
b. No Waiver. No provision of this Agreement may be waived except by
an Agreement in writing signed by the waiving party. A waiver of any term
or provision shall not be construed as a waiver of any other term or
provision.
c. Amendment. This Agreement may be amended or altered at any time, in
whole or in part, by filing with this Agreement a written instrument
setting forth such changes, signed by all parties.
d. Binding Effect. This Agreement shall be binding upon the Employee,
the Company, and their successors and assigns.
e. Construction. Throughout this Agreement the singular shall include
the plural, the plural shall include the singular, and the masculine shall
include the feminine wherever the context so requires.
f. Text to Control. The headings of Sections are included solely for
convenience of reference. If any conflict between any heading and the text
of this Agreement exists, the text shall control.
g. Severability. If any provision of this Agreement is declared by any
court of competent jurisdiction to be invalid for any reason, such
invalidity shall not affect the remaining provisions which shall be fully
severable, and the Agreement shall be construed and enforced as if such
invalid provision had never been included.
h. Entire Agreement of the Parties. The parties agree that this
document contains the entire agreement and understanding between them in
relation to the subject matter hereof and no representations, warranties,
covenants, understandings, or agreements in relation thereto exist between
the parties except as expressly set forth herein.
i. Notices. Every notice or other communication to be given by either
party to the other party with respect to this Agreement, shall be in
writing and shall not be effective for any purpose unless the same shall be
served personally or by national air courier service, or United States
certified mail, return receipt requested, postage prepaid, addressed, if to
the Company at 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000,
Attention, Xxxxx X. Xxxxxxxxx and if to the Employee at 000 Xxxxx Xxxxxxx,
Xxxxxxxx, Xxxxxxxx 00000, or such other address or addresses as the Company
or the Employee may from time to time designate by written notice given as
above provided. Every notice or other communication hereunder shall be
deemed to have been given as of the third business day following the date
of such mailing (or as of any earlier date evidenced by a receipt from such
national air courier service or the United States Postal Service) or
immediately if personally delivered. Notices not sent in accordance with
the foregoing shall be of no force and effect until received by the
foregoing parties as such addresses specified herein.
j. Duplicate Originals. This Agreement may be executed in several
counterparts, each of which shall be an original but all of which together
shall constitute one and the same instrument.
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k. Arbitration. Any dispute or controversy of or relating to this
Agreement, or any breach of this Agreement, shall be settled by arbitration
to be held in Denver, Colorado, in accordance with the rules then in effect
of the American Arbitration Association or any successor thereto. The
decision of the arbitrator shall be final, conclusive and binding on the
parties to the arbitration. Judgment may be entered on the arbitrator's
decision in any court having jurisdiction and the parties irrevocably
consent to the jurisdiction of the Colorado state courts for this purpose.
The Company shall pay the costs and expenses of such arbitration.
l. Attorneys' Fees. In the event that the Company or the Employee
retains an attorney or attorneys to enforce performance of this Agreement
by the other party or to obtain damages or other relief because of
violation of the terms of this Agreement by the other party, then all
reasonable attorneys' fees and costs of arbitration or litigation are to be
borne and paid by the party determined to have failed to perform this
Agreement or to be liable for damages or against which other relief is
granted.
m. Survivorship. The respective rights and obligations of the parties
hereunder shall survive any termination of the Employee's employment to the
extent necessary to the intended preservation of such rights and
obligations.
n. Remedies Cumulative; No Waiver. No remedy conferred upon a party by
this Agreement is intended to be exclusive of any other remedy and each and
every such remedy shall be cumulative and shall be in addition to any other
remedy given hereunder or now or hereafter existing at law or in equity. No
delay or omission by a party in exercising any right, remedy or power
hereunder or existing at law or in equity shall be construed as a waiver
thereof and any such right, remedy or power may be exercised by such party
from time to time and as often as may be deemed expedient or necessary by
such party in such party's sole discretion.
The parties have executed this Agreement to be effective as of the date
first above written.
MULTI-LINK TELECOMMUNICATIONS, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxxxx
Attest:
/s/
--------------------------------
EMPLOYEE:
/s/ Xxxxx X. Xxxxxxx
------------------------------------------
Xxxxx X. Xxxxxxx
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SCHEDULE A
DESCRIPTION OF DUTIES AND COMPENSATION
EMPLOYEE: Xxxxx X. Xxxxxxx
POSITION WITH COMPANY: President and Chief Operating Officer
COMPENSATION:
Salary: $48,000
BENEFITS:
Insurance: Medical, dental, disability (long and short term)
and life to the extent available to all employees
of the Company and paid in accordance with Company
policy if elected by Employee.
401(k) Plan: Available for Employee's election if eligible.
Medical Reimbursement: Available for Employee's election if eligible.
