EMPLOYMENT AGREEMENT
UNIVERCELL HOLDINGS, INC.
This EMPLOYMENT AGREEMENT (the "Agreement") is made as of January 1, 2002 (the
"Effective Date"), by and between UNIVERCELL HOLDINGS, INC. (together with its
subsidiaries and affiliates, the "Company"), a Florida corporation with its
principal place of business at ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and
▇▇▇▇ ▇. ▇▇▇▇▇, an individual residing at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, (the "Employee"). In consideration of the mutual promises and covenants
set forth in this Agreement, the Company and the Employee agree as follows:
1. TERM AND DUTIES. This Agreement shall be effective as of the Effective
Date and continue for a continuous five-year period after the Effective Date
(the "Term"), unless earlier amended or terminated in accordance with this
Agreement. The Employee's job title and specific job responsibilities
("Services") are set forth in EXHIBIT A, which is attached to and incorporated
into this Agreement.
2. COMPENSATION, BENEFITS AND EXPENSES. In exchange for the Employee's
Services hereunder, the Employee shall be paid an annual salary, as set forth in
EXHIBIT A (the "Base Salary"), in a manner consistent with the Company's
standard payroll practices. Bonuses, if any, for the years 2002 through 2006
shall be provided at the Company's sole discretion, as determined by the
Company's Board of Directors, acting through its compensation committee, which
shall be independent of the Board of Directors. With the consent of the
Employee, the Employee's right to receive a bonus under this Agreement shall be
replaced with a written executive incentive bonus plan as adopted by the
Company's Board of Directors. The Employee shall be entitled to participate in
benefit plans (other than bonus plans) generally made available by the Company,
which can be changed by the Company at any time without notice. Vacation time,
personal days and sick time may be taken by the Employee in accordance with the
Company's then-current policy. To receive reimbursement of business-related
expenses, the Employee must submit to the Company all appropriate documentation
evidencing such expenses prior to reimbursement.
3. NON-COMPETITION AND NON-SOLICITATION.
A. The term "Competitor" as used in this Agreement shall mean any person
or business entity engaged in or about to become engaged in the production,
licensing, sale or marketing of any product or service or planned business of
the Company which is similar to or directly competitive with the Company's
products or services, or any product or service under development by the
Company, with which the Employee has been directly involved, has had reasonable
access to, or has reason to know about, as a result of his work with the Company
at any time during the term of his employment with the Company.
B. As a material inducement to the Company to enter into this Agreement,
the Employee covenants and agrees that without the Company's prior written
consent, during the Employee's employment with the Company and for a period of
twelve (12) months following the termination, for any reason, of such
employment, the Employee shall not enter the employ of any Competitor, nor
engage during such period, directly or indirectly, as principal, agent, officer,
employee or otherwise, anywhere in the United States or in any geographic area
where the
Company markets its products and services, in any actions which would conflict
with the best interests of the Company, or any actions to solicit, divert or
take away any customer, supplier or partner of the Company, or provide services
to (other than on the Company's behalf), or assist in any manner any Competitor,
or otherwise compete with the Company in the production, licensing, sale or
marketing of any products or services competitive with the products and services
developed, marketed or under development by the Company during the Term
hereunder.
C. The foregoing does not limit the Employee's right to invest in
entities traded on any public market or offered by any national brokerage house
provided that the Employee's interest in any such entity does not exceed two
percent (2%) of the voting control of such entity.
D. The Employee acknowledges and agrees that all of the Company's
products and services, whether existing, under development or incomplete, are or
are intended to be marketed and licensed to customers worldwide. The Employee
further acknowledges and agrees that his obligations related to non-competition
will not impair him from becoming gainfully employed, or otherwise earning a
livelihood following the termination of this Agreement. The Employee agrees that
this provision shall survive any termination of the Term or this Agreement.
E. During the Term and for twelve (12) months thereafter, the Employee
shall not (i) directly or indirectly solicit, divert or take away any Company
customers, suppliers or partners, or provide services to, or assist in any
manner any Competitor, or otherwise compete with the Company in the production,
licensing, sale or marketing of any products or services competitive with the
Company's products and services, whether existing or under development, at the
time of the termination of this Agreement; (ii) solicit, induce, attempt to
hire, or hire any person who was an employee or contractor of the Company during
the Term or during the subsequent twelve-month period; (iii) assist or encourage
such person to terminate his position with the Company. The Employee agrees that
this provision shall survive any termination of the Term or this Agreement.
4. CONFIDENTIALITY. At no time while the Company is actively pursuing its
business, either during the Term or thereafter, shall the Employee disclose to
sources outside the Company, any technical or business information which the
Employee has learned or developed during the course of his employment hereunder
("Confidential Information"). Such Confidential Information includes, without
limitation, in any form or medium in any way perceived: trade secrets,
inventions, art, drawings, schematics, technical or scientific data, files,
documentation, diagrams, specifications, know-how, processes, product criteria,
research and development records and materials, source code and object code
(including the structure, sequence, and organization thereof), lists of any
type, databases, test results and samples, marketing techniques and materials,
marketing, business and development plans and proposals, reproductions, notes,
reports, pricing data, data storage devices, information relating to customers,
vendors and partners, financial information, and information on operational
methods that may come to the Employee's knowledge. The Employee will use his
best efforts to safeguard, protect and prevent, the disclosure, including any
unauthorized use, sale, license or exploitation or any inadvertent or accidental
exposure, to any outside parties of such Confidential Information. The
Employee's duty to maintain such Confidential Information in confidence
hereunder shall survive the termination of this Agreement, except to the extent
that any such Confidential
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Information becomes generally known in the industry through no direct or
indirect fault of the Employee. The Employee agrees that this provision shall
survive any termination of the Term or this Agreement.
5. TERMINATION.
A. The Company may immediately terminate the Term and this Agreement upon
the bankruptcy, death or permanent disability of the Employee.
B. If the Employee defaults in the performance of any material provision
of this Agreement, unless there has previously occurred a material default by
the Company (including any default in payment that has not been cured), the
Company may give the Employee written notice of the circumstances of such
material breach, and if such breach is not remedied within thirty (30) days
after such notice, the Term and this Agreement shall be terminable immediately
upon notice by the Company to the Employee.
C. The Company may terminate the Term and this Agreement immediately and
without prior notice for "Cause," which shall mean the Employee's (i) acts of
dishonesty, disloyalty, moral turpitude, criminal or other illegal conduct
taking place during or as the result of the Employee's performance of Services
(as defined on EXHIBIT A hereto) for the Company or (ii) failure or refusal to
perform any Services, duties or obligations hereunder, whether as a result of
misfeasance, nonfeasance, negligence or any other action deemed to be the
Employee's direct or indirect fault.
D. If this Agreement and the Term are terminated by the Company for any
reason set forth in Sections 5(A) through (C) above, then the Company shall pay
the Employee through the actual date of termination and the Term shall terminate
as of the actual date of termination. If this Agreement is terminated by the
Company for any reason other than those set forth in Sections 5(A) through (C)
above, then the Company shall pay the Employee the Base Salary from the date of
notice of termination through the end of the Term at such times and in such
amounts as if the Employee shall have remained in the Company's employment under
this Agreement without giving effect to early termination. In addition, the
Employee shall be entitled to receive a bonus for the year in which such
termination has occurred, and for all subsequent years of the Term, that equals
the bonus paid in the year prior to the year in which such termination has
occurred.
Notwithstanding the foregoing, at all times after termination the Employee shall
have the affirmative duty to seek other employment of comparable stature and
with comparable base and salary compensation and otherwise to attempt to
mitigate his right to payment, and the foregoing payments of Base Salary and
bonus shall decrease if and to the extent that the Employee obtains other
comparable employment or provides his comparable services as a consultant or
sole proprietor or partner, by the amount of compensation payable thereunder in
respect of services provided to or provided by the Employee during the time
period prior to the termination of the Term (without giving effect to early
termination). The provisions of this Section 5(D) are the exclusive provisions
that will apply if a court or arbitrator should determine that the Company's
termination of the Employee's employment was without Cause or was by reason of a
material breach by the Company of any of its material obligations under this
Agreement.
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E. If the Company defaults in the performance of any material provision
of this Agreement requiring payment of any amount to the Employee, without a
previous incurred material default by the Employee, the Employee may give the
Company written notice of the circumstances of such material breach, and if such
breach is not remedied within seven (7) days of such notice, this Agreement
shall be terminable immediately upon notice by the Employee to the Company;
PROVIDED, that, the Employee may, in his sole discretion, subsequent to any such
alleged breach but prior to the termination of this Agreement, suspend all
Services until such material breach has been remedied. If the Employee shall
terminate this Agreement as provided in this Section 5(E), the Company shall be
obligated to make those payments to the Employee that it would be obligated to
make pursuant to Section 5(D) above had the Company terminated this Agreement
for any reason other than those set forth in Sections 5(A) through (C) above,
subject to the Employee's obligation to mitigate as set forth therein.
6. RETURN OF COMPANY PROPERTY. Upon termination of this Agreement
for any reason, the Employee shall return to the Company within ten (10)
business days from the termination date:
A. all records, materials, equipment, drawings and documents which
are owned, leased or licensed by the Company; and
B. any data of any nature pertaining to or incorporating any
Confidential Information of the Company, including any copies thereof,
regardless of whether the Company or the Employee created such data.
The Employee agrees that this provision shall survive any termination of the
Term or this Agreement.
7. WORK PRODUCT.
A. DEFINITION. During the Term, the Employee will promptly disclose
in confidence to the Company, whether completed or not, in all media or forms of
expression, all inventions, improvements, designs, documentation, data, reports,
designs, techniques, methodologies, processes, programs, Internet/e-commerce
products and services, databases, and trade secrets, and any other materials or
information that the Employee creates, conceives, produces or first reduces to
practice, either alone or jointly with others, during his employment hereunder,
whether or not in the course of such employment, and whether or not such works
are protectable in any way under any applicable intellectual property law ("Work
Product").
B. WORK MADE FOR HIRE. The Employee acknowledges and agrees that any
Work Product, as defined hereunder, shall vest in the Company and constitute the
Company's exclusive property, with the Company having the right to obtain and
hold in its own name, all copyrights, registrations or such other protection as
may be appropriate to the subject matter, and any extensions and renewals
thereof. The Employee agrees that all Work Product has been specially
commissioned by the Company, be deemed to be a "work made for hire" (as defined
in the U.S. Copyright Act of 1976, as amended), and created in the course of the
Services rendered hereunder. The Employee waives any and all paternity,
integrity, moral or any other similar
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rights, existing under judicial or statutory law of any country in the world, or
under any treaty, regardless of whether or not such right is denominated or
generally referred to as a "moral right," that the Employee may have now, or in
the future, in and to the Work Product. To the extent that title to any Work
Product may not, by operation of law, vest in the Company, or the Work Product
may not be considered a work made for hire, the Employee irrevocably assigns and
transfers to the Company, in perpetuity, all of the Employee's worldwide rights,
title and interest in and to the Work Product, whether such rights are vested or
contingent, including, but not limited to, all copyrights, patents, trade
secrets, trademarks and any other proprietary rights therein. The Employee
agrees that this provision shall survive any termination of the Term or this
Agreement.
C. FURTHER ASSISTANCE. Upon the Company's reasonable request, the
Employee shall assist the Company in undertaking all such further acts and
executing all such further assignments, documents and instruments in order to
obtain, perfect, provide evidence of or protect the Company's rights hereunder.
If the Employee fails to do so within five (5) business days of receiving the
Company's written notice regarding such request, the Employee appoints the
Company to execute such documents and instruments in the Employee's name and on
its behalf as its duly authorized attorney, and this appointment shall be
irrevocable and be deemed a power coupled with an interest.
D. INFORMATION DISCLOSED REMAINS PROPERTY OF COMPANY. The Employee agrees
and acknowledges that all ideas, concepts, information and written material
disclosed to him by the Company, or acquired from any of the Company's
customers, suppliers, affiliates or partners are and shall remain the sole and
exclusive property and Confidential Information of the Company or such third
parties, and are disclosed in confidence by the Company or permitted to be
acquired from such third parties in reliance on the Employee's agreement to
maintain such information in confidence and not to use or disclose them to any
other party except in furtherance of the Company's legitimate business
interests.
8. INJUNCTIVE RELIEF. The Employee acknowledges that his obligations
regarding non-competition, non-solicitation, Confidential Information and any
intellectual property rights hereunder have a unique, very substantial and
immeasurable value to the Company, and breach of such obligations would cause
irreparable harm and unascertainable damages to the Company, entitling it to
seek injunctive relief and any other available remedies, including reasonable
attorney's fees and costs, without posting a bond or security or proving
damages.
9. MISCELLANEOUS.
A. NOTICE. Any notice required or permitted hereunder shall be validly
and effectively given only if (i) personally delivered to the other party, (ii)
sent by first class certified mail, return receipt requested, and postage
prepaid, or (iii) delivered via a nationally recognized global delivery service
(i.e. Federal Express, United Parcel Service) to the address of the respective
party indicated in this Agreement (or to such other address as shall be advised
by either party to the other in writing).
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B. ENTIRE AGREEMENT; NO MODIFICATIONS. This Agreement embodies the entire
agreement and understanding of the parties, and supersedes all prior or
contemporaneous written or oral communications or agreements between the parties
regarding the subject matter hereof. No amendments or additions to this
Agreement will be binding unless in writing and signed by both parties. This
Agreement shall be binding on and inure to the benefit of the parties and their
respective legal representatives, successors and assigns.
C. WAIVER; SEVERABILITY. If any provision hereunder is held to be invalid
or unenforceable for any reason, the remaining provisions shall continue in full
force without being impaired or invalidated in any way. Either party's waiver of
a breach of any provision hereunder shall not operate or be interpreted as a
waiver of any other or subsequent breach, unless in writing and signed by both
parties.
D. NON-ASSIGNABILITY. The Employee shall not assign or transfer in whole
or in part his rights, obligations or interests arising from this Agreement
without the Company's prior written consent. Any such attempt shall be deemed
void and may be construed as a material breach of this Agreement.
E. FORCE MAJEURE. Either party's failure to perform any obligation
arising under or in connection with this Agreement shall be excused, if such
failure shall have been caused by any act or circumstance beyond such party's
reasonable control, including without limitation, any act of God, fire, flood,
explosion, failure of equipment, court order or governmental interference, civil
commotion, riot, war, strike, transportation difficulties or labor shortages,
etc.
F. SURVIVAL. The termination of this Agreement for any reason shall not
terminate the obligations or liabilities of the parties under the terms and
conditions of this Agreement regarding the Company's right to repurchase the
Employee's Units, confidentiality, payment, warranties, liabilities, proprietary
rights, and all others that by their sense and context are intended to survive
the execution, delivery, performance, termination and expiration of this
Agreement. Such obligations and liabilities shall survive and continue in effect
after such termination.
G. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of Maryland without giving effect to the choice of law
or conflict of law provisions thereof. The courts of Maryland shall have
exclusive jurisdiction over any matter arising under it (except that injunctive
relief may be sought by the Company in any court having jurisdiction). The
prevailing party in any action related to the interpretation, performance or
breach of any provision of this Agreement shall be entitled to be reimbursed for
any and all reasonable attorney's fees, costs and expenses incurred in pursuing
such remedy hereunder.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
Effective Date.
UNIVERCELL HOLDINGS, INC EMPLOYEE
----------------------------- -----------------------------
[Signature] [Signature]
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇, CEO By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------- --------------------------
[Full name and Title] ▇▇▇▇ ▇. ▇▇▇▇▇
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EXHIBIT A
DESCRIPTION OF EMPLOYMENT SERVICES
EMPLOYMENT AGREEMENT
between UniverCell Holdings, Inc. and ▇▇▇▇ ▇. ▇▇▇▇▇
Effective Date: January 1, 2002
JOB TITLE:
Chief Executive Officer, President, Chairman of the Board of Directors
SPECIFIC JOB RESPONSIBILITIES ("SERVICES"):
▇▇. ▇▇▇▇▇ manages the strategy, implementation, development, marketing and
funding of the Company's business and its operations. His responsibilities
include, but are not limited to, hiring, financial relationship and business
model development.
BASE SALARY:
YEAR BASE SALARY
---- -----------
2002 $75,000
2003 $125,000
2004 $140,000
2005 $160,000
2006 $180,000
Base Salary figures are exclusive of any other benefits provided to the Employee
by the Company.
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