Exhibit 10.9
UNIVERSAL BROADBAND COMMUNICATIONS, INC.
EMPLOYMENT AGREEMENT
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This Agreement is entered into on this 28th day of November, 2001,
in the City of Irvine, California, by and between UNIVERSAL BROADBAND
COMMUNICATIONS, INC., a Nevada Corporation, (hereinafter referred to as
"COMPANY") and XXXXXX X. XXXXXX, an Attorney at Law (hereinafter referred
to as "EMPLOYEE and/or ATTORNEY") and collectively called the "Parties".
As of the date of the signing of this Agreement, Xxxx Xxxxx is serving as
Chief Executive Officer for the Company, referred to in this Agreement as
"C.E.O.".
This Employment Agreement (hereinafter referred to as "Agreement")
is entered into by and between Company and Employee as follows:
1. RECITALS
1.1 Company owns and operates a Intergrated Telecommunications
Company engaging in Long Distance Telephone and ISP services to
the business and individual customers. The principle place of
business of Company is 00000 Xxx Xxxxxx Xxxxxx, 00 Xxxxx,
Xxxxxx, Xxxxxxxxxx 00000.
1.2 Company is in the process of Merger and Acquisition of a
publicly reporting corporation in compliance with the SEC; and
prior to that merger, has felt the need of establishing a
General Counsel's Office.
1.3 Employee is a licensed attorney in the State of California,
whose California Bar Number is 62914, and has a Professional
Law Corporation registered with the State Bar Association by
the name of " Law Office of Xxxxxx X. Xxxxxx, A Professional
Law Corporation", doing business at 00000 Xxxxxx Xxxxxxxxx,
Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000.
1.4 The Parties have negotiated an Agreement that would require the
Employee to establish a General Counsel Office within the
headquarters of the Company, and have reached an agreement.
1.5 The C.E.O. has represented to Employee that he has the power
and authority to bind the Company to accept the terms and
conditions of this Agreement.
1.6 The Parties desire to place their agreement in writing, which
sets out Employee's employment with Company as General Counsel,
commencing December 3, 2001, to oversee and manage the legal
aspects of Company, with the statement of the respective
responsibilities of both parties.
NOW THEREFORE, in consideration of the mutual covenants and conditions
hereinafter set forth, the parties agree as follows:
2. EMPLOYMENT AS GENERAL COUNSEL
AND INDEPENDENT CONTRACTOR
2.1 Company hereby employs Employee as General Counsel for a
three-year term, unless modified by the Parties as set out
below, commencing on Monday, December 3, 2001, to establish,
supervise and oversee a General Counsel Office for Company.
Employee hereby accepts such employment, upon the terms and
conditions set forth.
2.2 From the date of this Agreement, until December 3, 2001,
Employee/Attorney will act as an Independent Contractor, and
report directly to the C.E.O. of Company. Work assignment will
be based upon task and legal contracts that need to be reviewed
by the General Counsel prior to employment date. As an
Independent Contractor, work can be performed at the Company's
headquarters, as well as at Employee's law firm in Tustin.
Employee shall not be reimbursed for travel time, travel
expenses, nor staff time utilized at his office in Tustin, for
this interim task. Company, however, on an as-is basis, will
provide computer and secretarial support, as approved by the
C.E.O.
3. DUTIES AND RESPONSIBILITIES OF EMPLOYEE
3.1 Employee will establish a General Counsel Department at the
principle business location in Irvine, referenced above, and
manage and supervisor the performance of said department.
3.2 Company will provide office space at its Irvine location on the
10th floor, per schematic diagrams, discussed by and between
Employee and Chief Executive Officer, Xxxx Xxxxx.
3.3 Company shall provide furniture, computers, law library
updates, space for a Paralegal Assistant and Legal Secretary,
for the Employee. Staff personnel for the General Counsel's
office shall be
paid directly by Company and shall work under the supervision
and control of Employee. It is agreed that Employee reports
to the CEO on all hiring, dismissal, and such other employment
decisions.
3.4 Dependant upon work load of Company and its growth, Employee
shall be allowed to hire an additional Attorney or Staff
Counsel on an as-needed needed basis, upon approval by the
CEO.
3.5 Employee will not be duly responsible for Securities and
Exchange Commission matters, although Employee will be allowed
to hire and supervise work product and xxxxxxxx of Outside
Counsel on an as-needed basis, with the approval of the CEO.
General Counsel, would be responsible make Court Hearings,
attend Court Trials, if any, Settlement Conferences,
Depositions, and review of Complaints and such other related
matters for Company.
3.6 PARTICIPATION IN ORIENTATION AND TRAINING: Employee agrees to
participate in orientation and service training programs,
designated by Company, and to comply with all training
requirements and policies, established from time to time by
Company. Furthermore, Employee is expected to attend
Continuing Educational Programs, as directed by the State Bar,
in order to keep license current. Any programs that are
related to Corporate Law, Employment, Securities matters,
mergers and acquisitions, and financial matters, shall be
reimbursed by Company, so long as prior notice is given and
approved.
3.7 COMPLIANCE: Employee agrees to comply with all applicable
policies of Company, including but not limited to, personnel
and employment qualifications, employment policies and
procedures, etc. Employee further agrees that all activities
carried out by him, pursuant to this Agreement, shall be
carried out without discrimination on the basis of age, sex,
physical; or mental handicap, race, color, religion, ancestry,
or national origin.
4. PERFORMANCE EVALUATION
4.1 Employee's performance shall be reviewed for the first 90 days
of employment and on an annual basis by COMPANY. Annual basis
shall be deemed as the end of its fiscal accounting period,
which is December 31st of each year.
5. COMPENSATION
5.1 For all services to be rendered by Employee on behalf of "UBC"
or its affiliate or any successor, Company, commencing on
December 3, 2001, agrees to pay, and Employee agrees to accept,
compensation as follows:
a. $96,000 for the first year base salary (payable weekly);
beginning on December 3, 2001. Second year base salary at
$115,000 and third year base salary of $140,000. A 10%
(ten percent) yearly bonus will be based on the yearly
base salary, and will be paid at the end of the Accounting
Year (December 31st of each year).
b. 25,000 shares of common stock of Company; ownership of
said stock shall vest with Employee in three months;
vesting to start December 3, 2001.
c. The options of common stock to be granted with vesting
over a twelve-month period vesting at fifty percent per
month, and options are to be performance based. Employee
would be allowed to participate in Company Employee Stock
Option Plan.
d. Subsequent to the vesting date, shares shall remain the
sole property of Employee regardless of change in
ownership and/or control of Company, unless Employee and
only Employee exercises his right in the sale or transfer
of such stock.
e. Employee shall receive three (3) weeks' paid vacation
(fifteen working days) after December 3, 2002 (first
year), three weeks (fifteen working days) after second
year, and four weeks (twenty working days), after third
year. Employee can stagger the accrued vacation time, and
with approval of the C.E.O. Any earned or unused
vacation time shall be paid to Employee if Employee either
voluntarily leaves Company, or is terminated by Company.
f. Employee shall be paid holidays, pursuant to Company
policy, as well as receive five (5) days of paid personal
time per year, per Company Policy. Unused accrued
personal time has no cash value and will not be paid at
termination.
g. Employee shall be included in any and all of Company's
medical, Workers' Compensation, and all other Health
benefits and Retirement Plans - 40l(K) that Company may
have (whether they exist at the time of this Agreement or
as executed or any time thereafter), effective 90 days
after employment.
h. Employee, from time to time, may be required to travel
and/or take selected professionals to
breakfast/lunch/dinner, at the request or approval of
C.E.O., Employee shall be reimbursed for said expenses,
once itemization is provided and approved.
i. Employee shall receive Severance Pay upon involuntary
termination of his employment. If employed for at least
one year, such severance pay shall include a minimum of at
least thirty (30) days' salary (measured at the time of
termination).
j. Either party may terminate this contract by giving a
thirty-day notice. However, any termination notice by
either party Employee shall be paid a lump sum based upon
all accumulated earnings and benefits granted.
5.2 Employee understands that other type(s) of compensation may be
paid to Employee other than as stated in Paragraph 5.1, and
this Agreement can be amended and updated accordingly, if
agreed to by the Parties mutually in writing, or according to
Company Policy.
6. CONFIDENTIAL AND PROPRIETARY INFORMATION
6.1 In the course of his employment, Employee may have access to
Company's confidential information and trade secrets, including
confidential records, data specification, manuals, policies and
procedures, client lists and other items of proprietary and/or
confidential information, which are the property of Company and
used in the regular course of its business. During Employee's
employment and for three (3) years thereafter, Employee
warrants that he will not, directly or indirectly, disclose or
use any such information for his personal benefit or for the
benefit of any third party or to the detriment of Company,
except as required in the regular course of his
employment with Company. However, such confidential
information may be disclosed with the written consent of
Company.
7. COMPETITION
7.1 During the term of this Agreement, Employee shall not:
a. Render same or similar services on behalf of any person or
company, except he is allowed to practice law and wind
down affairs of his private law practice, as needed.
According to Superior Court and State Bar policy, it may
become necessary to render legal services to existing
clients, with their current cases. Attorney will covenant
and agree the C.E.O. informed in advance of the events, as
well as will work additional time for Company in order to
compensate for the time expended.
b. Permit his name to be used by, be engaged with, or carry
on (either for himself or as a member of a partnership, or
as a stockholder, officer or director of a corporation, or
as an employee, agent, associate or consultant of any
person, or corporation) any business that is competitive
with or adverse to Company. It is understood by the
Parties that Employee has a professional law corporation,
is licensed by the California State Bar, and for licensing
and tax purposes, is not required to abandon professional
identity.
c. Employee will, from time to time, continue his obligations
as officer and member of service clubs, non-profit
organizations, for the purpose of advertising said
company, and upon approval of C.E.O. The Company has the
option of paying for dues, if offered.
8. TERMINATION
8.1 COMPANY shall have the right to terminate this Agreement for
any of the following reasons by serving written notice upon
EMPLOYEE:
a. For willful breach of any covenant and condition of
employment, habitual neglect of, willful failure to perform, or
inability to perform, EMPLOYEE'S duties and obligations as GENERAL
COUNSEL;
b. For illegal conduct, constituting a crime involving moral
turpitude, conviction of a felony, or any conduct detrimental to the
interest of COMPANY;
c. For physical or mental disability rendering EMPLOYEE
incapable of performing his duties for a consecutive period of 180
days, or by death;
d. Determination by C.E.O. that the continued employment of
GENERAL COUNSEL is detrimental to the best interest of
COMPANY. If said matter of termination comes before the
COMPANY'S Board of Directors, the Board of Directors shall have the
sole and absolute discretion as to whether or not continued
employment is in the best interests of COMPANY.
9. CLIENT RECORDS
9.1 It is expressly understood that all legal files, documents
and/or records for Company provided to Employee by Company
and/or work product produced by Employee or Company constitute
the property of Company. Upon termination of his employment,
Employee shall deliver said files/documents to Company.
10. ASSIGNMENT
10.1 Nothing contained in this Agreement shall be construed to
permit assignment, by Employee of any rights or duties under
this Agreement. Any such assignment is expressly prohibited.
11. DISPUTE RESOLUTION/MEDIATION
11.1 In the event that there is any dispute as to any items subject
to this Agreement, including, but not limited to, the extent,
quality, manner and location of services to be rendered and
fees to be paid, such disagreement shall first be submitted to
the C.E.O. of Company for resolution and if not resolved by and
between the parties, shall be submitted to Mediation. If
Mediation is not successful in resolving the entire dispute,
any outstanding issues shall be submitted to final and binding
arbitration in accordance with the rules established by the
American Arbitration Association. The arbitrator's award shall
be
final and judgment may be entered upon it by any Court having
competent jurisdiction. If either party hereto shall institute
any legal or other proceedings to enforce or interpret any
rights hereunder or terms thereof, the prevailing party in such
action will be entitled to reasonable attorney fees and all
court costs. Jurisdiction shall be in Orange County, or as
agreed to by the parties.
12. COSTS AND ATTORNEYS' FEES
12.1 In the event that either party hereto shall bring any such
action to enforce any provision of this Agreement, or as a
result of any default in the performance of any provision of
this Agreement, the prevailing party in such action shall be
entitled to recover all costs and expenses, including
reasonable attorney's fees, incurred by such prevailing party
in connection with such action.
13. ENTIRE AGREEMENT
13.1 This Agreement constitutes the entire Agreement between the
parties hereto with respect to the matters herein, and
supersedes all prior agreements.
14. NOTICES
14.1 All notices or other communication that either party may desire
or may be required to deliver to the other party, may be
delivered in person or by depositing same in the United States
mail, postage prepaid, Certified or Registered Mail, addressed
as follows:
If to Employee:
Xxxxxx X. Xxxxxx
00000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
If to Company:
Xxxx Xxxxx, C.E.O.
Universal Broadband Communications, Inc.
00000 Xxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
15. FURTHER DOCUMENTS
15.1 The Parties hereto agree to execute any further documents and
to take such further actions that may be necessary or
appropriate in order to carry out the purposes of this
Agreement.
16. VIOLATION OF LAW
16.1 In the event it is determined that any part of this Agreement
is in violation of applicable law, the parties agree to
negotiate, in good faith, to amend this Agreement as is
necessary to conform to the Law.
17. WAIVERS
17.1 Any waiver of any term, covenant or condition of this Agreement
by any party hereto, should not be effective unless set forth
in writing, signed by the party granting such waiver and the
other party thereto. If a partial waiver is granted or agreed
to by the parties, in no event shall any such waiver be deemed
to be a waiver of any other term, covenant or condition of this
Agreement.
18. CONTRACT REVIEW
I hereby agree to the above and certify that I have read the
foregoing and fully understand the meaning and effect thereof, and
intending to be legally bound, execute this agreement on this 28 day of
November, 2001, in Irvine, California.
By: /s/ XXXXXX X. XXXXXX November 28, 2001
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Xxxxxx X. Xxxxxx, Employee Date
By: /s/ XXXX XXXXX November 28, 2001
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Xxxx Xxxxx, C.E.O. of Universal Broadband Date
