EMPLOYMENT AGREEMENT
Exhibit
10.2
-----------------------------------------
THIS
AGREEMENT entered into and effective October 01, 2008, in Broward County,
Florida, by and between Virtual Payment Solutions, Inc., (VPS) a Florida
corporation with corporate offices at 0000 XX 00xx Xxx,
Xxxxx 000, Xxxxxxx Xxxxx, XX 00000. (hereinafter referred to as "Employer") and,
Xxxxx Xxxxx an individual, residing at, 0000 Xxxx Xxxxx Xx., Xxxxxxxxx Xxxxx, Xx
00000 (hereinafter referred to as "Employee"); (hereinafter sometimes
collectively referred to as “Parties” or singularly as “party”).
WHEREAS,
VPS is a financial services company specializing in payment
processing.
WHEREAS,
incident to the performance of Employee's duties for Employer, Employee will
occupy a position of trust and confidence and will be given access to
proprietary and confidential and privileged information regarding the business,
operations, assets and trade secrets of Employer, including but not limited to,
access to vendor identity, pricing, sales techniques, customer identification,
contact with customers and potential customers and the like;
WHEREAS,
Employee understands and acknowledges that Employer has expended and will
continue to expend substantial amounts of time and money to develop Employer’s
unique manner of offering these products and services, as well as advertising,
distribution and other relationships in furtherance of its unique marketing
approach, which techniques and information Employee agrees constitute trade
secrets, the sole property of Employer;
WHEREAS,
Employee seeks the opportunity to be employed by Employer, and Employer is
willing to employ Employee, on the terms, covenants, and conditions set forth in
this agreement;
WHEREAS,
Employee acknowledges that the business which employer is engaged is and/or may
be subject to extensive governmental or other rules or regulations;
and
NOW
THEREFORE, in consideration of the mutual covenants and promises of the parties,
and for other good and valuable consideration, the sufficiency of which is
hereby acknowledged, Employer and Employee covenant and agree as
follows:
| EMPLOYER:___ EMPLOYEE:___ |
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NATURE
OF EMPLOYMENT
----------------------------------------
1. Employer
does hire and employ Employee as the President of Employer and Employee does
accept and agree to such hiring and employment. Subject to the supervision and
pursuant to the orders, advice, and directions of Employer, Employee shall act
subject to the direction and control of the Board of Directors, and shall
perform such other duties as are customarily performed by one holding such
position in other similar businesses or enterprises as that engaged in by
Employer, and shall also additionally render such other and unrelated services
and duties as may be assigned to Employee from time to time by
Employer.
2. Employee
agrees to follow the terms, rules and regulations established for publicly
traded companies or other federal, state and governmental authorities
establishing the same or similar guidelines unless otherwise
notified.
MANNER OF PERFORMANCE OF EMPLOYEE'S
DUTIES
-------------------------------------------------------------------------------
3. Employee
agrees to perform, at all times faithfully, industriously, and to the best of
his ability, experience, and talent, all of the duties that may be required of
and from him pursuant to the express and implicit terms of this Agreement, to
the satisfaction of Employer. Such duties shall be rendered at Corporate Offices
of the Company and at such other place or places as Employer shall in good faith
require or as the interests, needs, business, and opportunities of Employer
shall require or make advisable.
DURATION
OF EMPLOYMENT
-------------------------------------------
4. The
term of this Agreement shall be for a period of one years, commencing on October
1, 2008, subject, however, to prior termination as provided
below. The Agreement will automatically renew on the anniversary date
for an additional 1 years unless notification is made 60 days prior to
expiration.
PAYMENT
AND REIMBURSEMENT
-------------------------------------------------
5. Employer
shall pay Employee and Employee agrees to accept from Employer, in full payment
for Employee's services under this Agreement, compensation as
follows:
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A.
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Base
annual gross salary of $81,000 per year payable in bi-weekly on the 15th
and 30th
day of every month during the term hereof, less applicable federal and
state deductions.
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B.
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As
additional consideration to enter into this agreement, the Employer agrees
to issue a stock bonus upon the execution of this agreement in the amount
of 100,000 Rule 144 restricted shares of the Company at
signing.
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C.
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Reimbursement
for all pre-approved expenses for entertainment, travel, and marketing
cell phone and health insurance until a company plan is
provided.
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D.
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Employee
will be entitled to a monthly car allowance of
$300.
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E.
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Commission
Schedule:
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5%
of gross profit on all equipment sales and software sales including but not
limited to:
X00, X00,
Quick book plug in, billing software etc.
Gateway generated revenue defined as
but not limited to:
All
billable transaction types
Monthly
recurring revenue tied to the gateway: (wholesale transaction, data plan’s,
private labeling, private branding "additional server")
Paid
on Monthly on Gross Profit (less gateway overhead)
$100,000k
to 3mm 2.5%
3mm-5mm
3%
5mm over
3.5%
Above
commissions are paid on the 30th day of
the month after the closing of the quarter subject to year-end
audit.
Gross
Profit is defined as Gross Revenue less direct related costs.
| EMPLOYER: ___ EMPLOYEE: ___ |
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6.
Employee
shall be eligible for all future benefit programs offered in the future by the
Company.
7. Employee
shall be distributed stock and given the option to purchase stock as herein
provided.
Stock Option Plan To Be
Completed
8. Employee
shall be entitled to two (2) weeks paid vacation during each twelve-month period
of the term hereof, to be taken at such times as Employer and Employee shall
mutually determine and provided that no vacation time shall materially interfere
with the duties which Employee is required to render hereunder. Vacation time
“may” be carried over from one twelve month period to a succeeding twelve-month
period.
10. Employee
shall be entitled to 3 months severance pay if Employee is terminated without
cause.
TERMINATION
----------------------
11.
Notwithstanding anything in this Agreement to the contrary, Employer has the
option to terminate this Agreement in the event that during its term Employee
shall become permanently disabled as the term permanently disabled is defined
below (15) in which event Employer shall have no further liability hereunder
except as follows
12.
Such option shall be exercised by Employer giving notice to Employee by
registered mail, addressed to him in care of Employer at 0000 XX 00xx Xxx.,
Xxxxx 000, Xxxxxxx Xxxxx, XX 00000, or at such other address
as Employee shall designate in writing, of its intention to terminate this
Agreement on the last day of the month during which such notice is mailed, and
on the giving of such notice this Agreement and the term of this Agreement come
to an end on the last day of the month in which the notice is mailed, with the
same force and effect as if that day were originally set forth as the
termination date.
13.
For the purposes of this Agreement, the term "any year of the term of this
Agreement" is defined to mean any period of 12 calendar months commencing on the
1st day of October, 2008 and terminating on the 30th day of September, of the
following year during the term of this Agreement.
| EMPLOYER:___ EMPLOYEE:___ |
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14.
For the purposes of this Agreement, Employee shall be deemed to have become
permanently disabled if, during any year of the term of this Agreement, because
of ill health, physical or mental disability, or for other causes beyond his
control, he shall have been continuously unable or unwilling or have failed to
perform his duties under this contract for 30 consecutive days, or if, during
any year of the term of this Agreement, he shall have been unable or unwilling
or have failed to perform his duties for a total period of 15 days, either
consecutive or not.
15. Death:
In the event of Employee's death during the term hereof, this Agreement and all
of Employee's rights hereunder shall be deemed terminated except that Employer
shall pay to Employee's estate any unpaid base salary and car allowance through
the date of Employee's death along with two months severance pay, an amount
equal to compensation for unused vacation days that have accumulated during the
twelve month period in which the termination occurs, and the right to exercise
stock options on behalf of the deceased as pertains to Section 7
herein.
16. Notwithstanding
anything in this Agreement to the contrary, in the event that Employer shall
discontinue operating its business then this Agreement will terminate as of the
last day of the month in which Employer ceases operations with the same force
and effect as if that day were originally set forth as the termination date of
this Agreement and neither party shall have any further liability
hereunder
17.
Employer shall at all times have the right, upon written notice to Employee to
terminate Employee's employment hereunder, for cause. For purposes of this
Agreement, the term "cause" shall mean:
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A.
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an
action or omission of the Employee which constitutes awillful
and material breach of this Agreement, which is not cured
within ten (10) days after receipt by the Employee of written
notice of same or, if such breach is not capable of cure
within such ten (10) day period, if the Employee has not commenced
diligently to cure such breach in the shortest time possible;
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B.
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fraud,
embezzlement, misappropriation of funds or breach of trust in connection
with his services hereunder;
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C.
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conviction
of any crime, which involves dishonesty or a breach of
trust;
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D.
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negligence
in connection with the performance of theEmployee's
duties hereunder; or
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E.
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the
material and willful or knowing failure or refusal (other than
as a result of a disability) by Employee to perform his duties hereunder.
Upon and termination pursuant to this Section, Employer
shall have no further liability
hereunder.
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| EMPLOYER:___ EMPLOYEE:___ |
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18. In
the event Employee resigns from his employment during the term hereof, Employer
shall have no further liability hereunder.
DEVOTION
BY EMPLOYEE OF FULL TIME TO BUSINESS
----------------------------------------------------------------------------------
19. Employee
shall devote all his time, attention, knowledge, and skill solely and
exclusively to the business and interest of Employer, and Employer shall be
entitled to all of the benefits, emoluments, profits, or other issues arising
from or incident to any and all work, services, and advice of Employee, and
Employee expressly agrees that during the term of this Agreement he will not be
interested, directly or indirectly, in any form, fashion, or manner, as partner,
officer, director, stockholder, advisor, employee, or in any other form or
capacity, in any other business similar to Employer’s business or any allied
trade.
RESTRICTIVE
COVENANTS
----------------------------------------
20.
At all times while Employee is employed by Employer, and for a two year period
after the termination of Employee's employment with Employer for any reason, the
Employee shall not, directly or indirectly, engage in or have any interest in
any sole proprietorship, partnership, corporation or business or any other
person or entity (whether as an employee, officer, director, partner, agent,
security holder, creditor, consultant or otherwise) that directly or indirectly
(or through any affiliated entity) engages in competition with Employer (or any
entity which controls, is under common control with or is controlled by
Employer).
21.
Employee shall not at any time divulge, communicate, use to the detriment of
Employer or for the benefit of any other person or persons, or misuse in any
way, any confidential information (as hereinafter defined) pertaining to the
business of Employer.
22.
Any confidential information or data now or hereafter acquired by Employee with
respect to the business of Employer (which shall include, but not be limited to,
information concerning Employer financial condition, prospects, technology,
customers, suppliers, sources of leads and methods of doing business) shall be
deemed a valuable, special and unique asset of Employee that is received by
employee
in confidence and as a fiduciary, and Employee shall remain a fiduciary to
Employer with respect to all of such information.
23.
For purposes of this Agreement, "confidential information" means
information disclosed to Employee or known by Employee as a consequence of or
through his employment by Employer (including information conceived, originated,
discovered or developed by Employer) prior to or after the date hereof, and not
generally known, about Employer or its business. Notwithstanding the foregoing,
nothing herein shall be deemed to restrict Employee from disclosing confidential
information to the extent required by law.
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24.
All copyrights, patents, trade secrets, or other intellectual property rights
associated with any ideas, concepts, techniques, inventions, processes, or works
of authorship developed or created by Employee during the course of performing
work for Employer or its clients (collectively, the "work product") shall belong
exclusively to Employer and shall, to the extent possible, be considered a work
made by Employee for hire for Employer with the meaning of Title 17 of the
United States Code. To the extent the work product may not be considered work
made by Employee for hire for Employer, Employee agrees to assign, and
automatically assign at the time of creation of the work product, without any
requirement of further consideration, any right, title, or interest that
Employee may have in such work product. Upon the request of Employer, Employee
shall take such further actions, including execution and delivery of instruments
of conveyance, as may be appropriate to give full and proper effect to such
assignment.
25.
All books, records, and accounts relating in any manner to the customers or
clients of Employer, whether prepared by Employee or otherwise coming into
Employee's possession, shall be the exclusive property of Employer and shall be
returned immediately to Employer on termination of Employee's employment
hereunder or on Employer’s request at any time.
26.
Solely for purposes of this Section, the term "Employer" also shall include any
existing or future subsidiaries of Employer that are operating during the time
periods described herein and any other entities that directly or indirectly,
through one or more intermediaries, control, are controlled by or are under
common control with Employer during the periods described herein.
27.
Employee acknowledges and confirms that (a) the restrictive covenants contained
in this Section are reasonably necessary to protect the legitimate business
interests of Employer, and (b) the restrictions contained in this Section
(including without limitation the length of the term of the provisions of this
Section) are not overbroad, overlong, or unfair and are not the result of
overreaching, duress or coercion of any kind. Employee acknowledges and confirms
that his special knowledge of the business of Employee is such as would cause
Employer serious injury or loss if he were to use such ability and knowledge to
the benefit of a competitor or were to compete with the Employer in violation of
the terms of this Employee further acknowledges that the restrictions contained
in this Section are intended
to be, and shall be, for the benefit of and shall be enforceable by, Employers
successors and assigns.
28.
In the event that a court of competent jurisdiction shall determine that any
provision of this Section is invalid or more restrictive as permitted under the
governing law of such jurisdiction, then only as to enforcement of this Section
within the jurisdiction of such court, such provision shall be interpreted and
enforced as if it provided for the maximum restriction permitted under such
governing law.
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29.
If Employee shall be in violation of any provision of this Section, then each
time limitation set forth in this Section shall be extended for a period of time
equal to the period of time during which such violation or violations occur. If
Employer seeks injunctive relief from such violation in any court, then the
covenants set forth in this Section shall be extended for a period of time equal
to the pendency of such proceeding including all appeals by
Employee.
30.
It is recognized and hereby acknowledged by the parties hereto that a breach by
Employee of any of the covenants contained in Section of this Agreement will
cause irreparable harm and damage to Employer, the monetary amount of which may
be virtually impossible to ascertain. As a result, Employee recognizes and
hereby acknowledges that Employer shall be entitled to an injunction from any
court of competent jurisdiction enjoining and restraining any violation of any
or all of the covenants contained in Section of this Agreement by Employee or
any of his affiliates, associates, partners or agents, either directly or
indirectly, and that such right to injunction shall be cumulative and in
addition to whatever other remedies Employer may possess.
ARBITRATION
----------------------
31. Any
dispute or controversy arising under or in connection with this Agreement shall
be settled exclusively by arbitration in Broward County, Fl in accordance with
the Rules of the American Arbitration Association then in effect (except to the
extent that the procedures outlined below differ from such rules). Within thirty
(30) days after written notice by either party has been given that a dispute
exists and that arbitration is required, each party must select an arbitrator
and those two arbitrators shall promptly, but in no event later than thirty (30)
days after their selection, select a third arbitrator. The parties agree to act
as expeditiously as possible to select arbitrators and conclude the dispute. The
selected arbitrators must render their decision in writing. The cost and
expenses of the arbitration and of enforcement of any award in any court shall
be borne by the losing party. If advances are required, each party will advance
one-half of the estimated fees and expenses of the arbitrators. Judgment may be
entered on the arbitrators= award in any
court having jurisdiction. Although arbitration is contemplated to resolve
disputes hereunder, either party may proceed to court to obtain an injunction to
protect its rights hereunder, the parties agreeing that either could suffer
irreparable
harm by reason of any breach of this Agreement. Pursuit of an injunction shall
not impair arbitration of all remaining issues.
ASSIGNMENT
---------------------
32. Employee
shall not have the right to assign or delegate his rights or obligations
hereunder, or any portion thereof, to any other person.
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GOVERNING LAW
--------------------------
33. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Florida without regard to its conflict of laws principles to the extent
that such principles would require the application of laws other than the laws
of the State of Florida. Venue for any action brought hereunder shall be in
Broward County, Florida and the parties hereto waive any claim that such forum
is inconvenient.
ENTIRE AGREEMENT
-------------------------------
34. This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and, upon its effectiveness, shall
supersede all prior agreements, understandings and arrangements, both oral and
written, between Employee and Employer (or any of its affiliates) with respect
to such subject matter. This Agreement may not be modified in any way unless by
a written instrument signed by both parties.
NOTICES
--------------
35. All
notices required or permitted to be given hereunder shall be in writing and
shall be personally delivered by courier, sent by registered or certified mail,
return receipt requested or sent by confirmed facsimile transmission addressed
as set forth herein. Notices personally delivered, sent by facsimile or sent by
overnight courier shall be deemed given on the date of delivery and notices
mailed in accordance with the foregoing shall be deemed given upon the earlier
of receipt by the addressee, as evidenced by the return receipt thereof, or
three (3) days after deposit in the U.S. mail. Notice shall be
sent (i) if to Employer, addressed to 000 XX Xxxxx Xxxxxx, Xxxxx
0000, Xx. Xxxxxxxxxx, XX 00000 and (ii) if to Employee, to his address as
reflected on the payroll records of the Employer, or to such other address as
either party hereto may from time to time give notice of to the
other.
BENEFITS; BINDING
EFFECT
-----------------------------------------
36. This
Agreement shall be for the benefit of and binding upon the parties hereto and
their respective heirs, personal representatives, legal representatives,
successors and, where applicable, assigns, including, without limitation, any
successor to Employer, whether by merger, consolidation, sale of stock, sale of
assets or otherwise.
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SEVERABILITY
----------------------
37. The
invalidity of any one or more of the words, phrases, sentences, clauses or
sections contained in this Agreement shall not affect the enforceability of the
remaining portions of this Agreement or any part thereof, all of which are
inserted conditionally on there being valid in law, and, in the event that any
one or more of the words, phrases, sentences, clauses or sections contained in
this Agreement shall be declared invalid, this Agreement shall be construed as
if such invalid work or words, phrase or phrases, sentence or sentences, clause
or clauses, or section or sections had not been inserted. If such invalidity is
caused by length of time or size of area, or both, the otherwise invalid
provision will be considered to be reduced to a period or area, which would cure
such invalidity.
WAIVERS
---------------
38.
The waiver by either party hereto of a breach or violation of any term or
provision of this Agreement shall not operate nor be construed as a waiver of
any subsequent breach or violation.
DAMAGES
---------------
39. Nothing
contained herein shall be construed to prevent Employer or Employee from seeking
and recovering from the other damages sustained by either or both of them as a
result of its or his breach of any term or provision of this Agreement. In the
event that either party hereto files for arbitration or brings suit for the
collection of any damages resulting from, or to enjoin any action constituting,
a breach of any of the terms or provisions of this Agreement, then the party
found to be at fault shall pay all reasonable court or arbitration costs and
attorneys= fees of the other including legal fees and costs incurred prior to
the filing of any action or arbitration.
NO
CONSTRUCTION AGAINST DRAFTER
-------------------------------------------------------------
40. This
Employment Agreement shall be construed without regard to any presumption or
other rule requiring construction against the party causing the drafting
hereof.
NO
THIRD PARTY BENEFICIARY
-----------------------------------------------
41. Nothing
expressed or implied in this Agreement is intended, or shall be construed, to
confer upon or give any person other than Employer, the parties hereto and their
respective heirs, personal representatives, legal representatives, successors
and assigns, any rights or remedies under or by reason of this
Agreement.
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IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first above written.
Virtual
Payment Solutions, Inc.
|
By:
|
/s/ Xxxxxxx X. Xxxxxxx | |
| Xxxxxxx X. Xxxxxxx - Employer | ||
| CEO | ||
| Virtual Payment Solutions, Inc. |
|
By:
|
/s/ Xxxxx Xxxxx | |
| Xxxxx Xxxxx - Employee |
| EMPLOYER:___ EMPLOYEE:___ |
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