EXHIBIT 10-10
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into on November 29, 2004, by and between
Xxxxxxx Xxxxxx ("Employee") and Voxx Corporation (the "Company"), a wholly owned
subsidiary of Epixtar Corp., a corporation duly organized and existing under the
laws of the State of Delaware. (Employee and the Company are sometimes referred
to collectively herein as the "Parties," and individually as a "Party.");
PROVIDED, HOWEVER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN,
THIS AGREEMENT SHALL BE OF NO LEGAL FORCE OR EFFECT UNLESS AND UNTIL THE
ACQUISISTION CONTEMPLATED BY THE ACQUISISTON AGREEMENT DATED OF EVEN DATE
HEREWITH (THE "ACQUISITION AGREEMENT") BY AND AMOUNG EPIXTAR CORP. AND THE
SHAREHOLDERS OF INNOVATIVE MARKETING STRATEGIES, INC. IS FULLY AND FINALLY
CONSUMMATED (THE "ACQUISITION").
WHEREAS, Employee desires to be employed with the Company under the
terms and conditions hereof; and
WHEREAS, the Company desires to employ Employee under the terms and
conditions hereof; and
WHEREAS, the Parties understand and agree that the Company, in
consideration of this employment relationship, will make significant
expenditures on behalf of Employee that will inure to the benefit of Employee;
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth below, and other good and valuable consideration, the Parties hereby
agree as follows:
1. Employment. The Company hereby agrees to employ Employee, with
Employee to hold the job title as set forth in Exhibit A hereto at Paragraph
numbered thereof, and Employee hereby accepts employment with the Company, on
the terms and conditions set forth below. NB: Exhibit A hereto is incorporated
and adopted into this Agreement, and made a part hereof for all purposes, as if
set forth in full. The Parties agree and stipulate that this Agreement and the
employment relationship hereunder arises and was entered into in Miami, Florida,
U.S.A., irrespective of Employee's actual day-to-day assigned physical location.
2. Term. Employee's term of employment with the Company hereunder
(the "Employment Period") shall begin on the date specified in Exhibit A hereto
at Paragraph numbered 2 thereof (the "Effective Date") and end on the date
specified in Exhibit A hereto at Paragraph numbered 2 thereof.
3. Position and Duties. Employee's position and duties shall be as
set forth in Exhibit A hereof at Paragraphs numbered 1 and 3. Employee shall
report directly to the individual(s) within the Company as identified in Exhibit
A hereto at Paragraph numbered 4, or to such other individual or individuals as
the Company may in its sole discretion designate from time to time. Employee
shall devote all of Employee's working time, attention and energies to the
performance of Employee's job duties hereunder, and shall apply at a minimum the
standard of care and performance applicable to one holding Employee's specified
job position/title in the market and industry in which Employee is employed.
Employee's job duties as set forth herein are a current description and may be
altered in the Company's sole discretion.
4. Place of Performance. The Company currently maintains its
Corporate Headquarters in Miami, Florida, U.S.A. Employee may be required to
travel to Miami, Florida, U.S.A. and various domestic and international
locations. Employee understands that frequent travel may be a requirement of
employment hereunder. Employee is initially to be assigned to the location
specified in Exhibit A hereto at Paragraph numbered 5. During the Employment
Period, the Company may change Employee's assigned location, as to city,
state/province or country upon mutual agreement.
5. Compensation and Benefits. Employee shall be compensated at the
rate set forth in Exhibit A hereto at Paragraph numbered 6, with the Company to
pay, or cause Employee to be paid, in accordance with the Company's then current
payroll policies and practices as to frequency of payment and all other matters,
subject to all applicable deductions. Employment benefits and perquisites during
the Employment Period shall be in accordance with, and as provided by, the
Company's then current benefits policies, procedures and programs, which may be
altered or curtailed at any time in the Company's sole discretion. EMPLOYEE
ACKNOWLEDGES THAT EMPLOYEE, AND NOT THE COMPANY, IS RESPONSIBLE FOR ALL
EMPLOYMENT TAXES AND THAT THE COMPENSATION SET FORTH AT PARAGRAPH NUMBERED 6
WITHIN EXHIBIT A HERETO IS A GROSS COMPENSATION FIGURE. COMPANY MAKES NO
REPRESENTATION REGARDING WHETHER OR NOT ANY COMPENSATION MAY BE TAX EXEMPT.
Company Management currently anticipates providing an annual salary review of
Employee which, in Company's discretion, may result in a five percent (5%)
increase in Employee's gross compensation based on a positive review.
6. Definitions. The following definitions apply for purposes of
this Agreement and all matters arising here from:
6.1 The Company's Customers. The "Company's Customers" shall
mean any persons or entities who have contracted for, or purchased, goods or
services from the Company (such as, by way of example and not limitation, call
center services or other telecommunications services, marketing services or
internet/web-related services), directly or indirectly through an agent or
otherwise, within the past twelve months immediately preceding the Effective
Date, and continuing for twelve months immediately following Employee's
separation from employment with the Company for any reason.
6.2 The Company's Employees. The "Company's Employees" shall
mean any and all persons who have been employed with the Company, whether on a
permanent, provisional or part time basis, and all transitional or potentially
transitional employees performing work for the Company whether as contractors or
otherwise (including by way of example and not limitation, all individuals doing
work for the Company supplied or procured by or through XxxXxxxxx.xxx
Philippines, or any employment or temporary help services agency) within the
past twelve months immediately preceding the Effective Date, and continuing for
twelve months immediately following Employee's separation from employment with
the Company for any reason.
6.3 Restricted Area. The "Restricted Area" shall mean any
country where the Company operates a call center, and shall further mean any
metropolitan area or city (whichever is greater in scope), in which the Company
maintains any other business location.
7. Termination.
7.1 The Company can immediately terminate Employee's
employment under the following circumstances:
(a) Death of Employee.
(b) Disability of Employee. If, as a result of Employee's
incapacity, physical or mental illness as determined by a physician selected by
the Company, Employee has been substantially unable to perform his or her duties
hereunder for ninety (90) continuous days, or in the aggregate of one hundred
twenty (120) days in any twelve (12) month period the Company shall have the
right to terminate Employee's employment hereunder for "Disability." Time off on
disability shall be unpaid, although Employee may be required or allowed to use
available paid time off. Nothing herein shall be construed so as to operate in a
manner that is not in compliance with any applicable, governing law, ordinance
or regulation regarding leave and/or disability.
(c) For Cause. Employer shall have the absolute right and
prerogative to immediately terminate Employee's employment for "Cause." "Cause"
is defined as: (i) arrest for or conviction of a misdemeanor or felony (to
include any conduct which would constitute a misdemeanor or felony under the
laws of Florida and/or the U.S.); (ii) willful misconduct or material violation
of the applicable standard of care or performance in connection with Employee's
employment; (iii) conduct that is contrary to the best interests and business
practices of the Company, as reasonably determined by the Company; (iv) the
insolvency, sale or merger of the Company; (iv) the abandonment or anticipated
abandonment of the Company for any reason of the line of business in which
Employee is then employed; (v) the material breach by Employee of any term or
condition of this Agreement; (vi) conduct reflecting moral turpitude and/or
conduct materially inconsistent with or damaging to Employer's image in the
community at large and the business community, such as, by way of example and
not limitation, illicit drug use, public misconduct, material financial
irresponsibility, or disparaging statements or publications to any third party
regarding Employer and/or its management or staff; (vii) Employee's abandonment
of his duties at the workplace demonstrated by Employee's unavailability and
Company's inability to contact Employee for a period of two (2) consecutive
days. Termination for Cause hereunder shall be in accordance with, and subject
to, the law (if any) of any jurisdiction outside the State of Florida, U.S.A.,
wherein the Employee is then assigned, if such law is found to be of mandatory
application. In this regard, it is the intent of the Parties that the provisions
herein shall govern over and supersede any such contrary provisions, to the
extent they are legally enforceable notwithstanding any such provisions.
7.2 Employee can terminate employment with the Company prior
to the lapse of the Employment Period only as follows: For Good Reason. Employee
may terminate employment with the Company for "Good Reason," after giving the
Company detailed written notice thereof and thirty (30) days for the Company to
substantially cure the circumstances giving rise to the Good Reason. "Good
Reason" is defined to consist of only: (a) the material breach of this Agreement
by the Company; or (b) a change in the essential functions of Employee's
position, unilaterally put into effect by the Company, causing Employee to cease
functioning in any managerial or supervisory capacity; (c) Disability, as
defined above and as confirmed by a physician selected by the Company.
8. Written Notice of Termination. Any termination of Employee's
employment by the Company or by Employee during the Employment Period shall be
communicated in writing to the other Party.
9. Exit Interview. Employee agrees and covenants that if Employee's
employment is terminated by either Party for any reason prior to the lapse of
the Employment Period other then death or disability (the latter as defined
hereinabove), Employee shall attend an exit interview at the Company's Corporate
Headquarters in Miami, Florida, U.S.A., or such other location within the U.S.A.
as the Company may at the time maintain. Travel to the exit interview, as
applicable, shall be at the reasonable expense of the Company, as will any
travel immediately thereafter to Employee's home state/country prior to
Employment hereunder. The reasonable cost of lodging in connection with the exit
interview shall be paid by the Company.
10. Covenant not to Compete. Employee agrees that while employed
with the Company, and for a period of two (2) years following Employee's
separation from employment with the Company for any reason, Employee shall not,
within the Restricted Area: (a) directly or indirectly own, manage, control,
participate in the management or control of, or be employed by, contract with or
maintain or continue any interest in, any entity engaged in the line(s) of
business the Company is then engaged in, or in the business process outsourcing
or teleservices industry; (b) work in the teleservices and/or business process
outsourcing industry and/or provide any services to any person or entity within
the teleservices and/or business process outsourcing industry. Nothing herein
shall be construed so as to restrict Employee from owning shares in any publicly
traded company provided that such shares comprise an ownership interest of five
percent (5%) or less of the publicly traded company. This covenant not to
compete shall not affect any other covenant by which Employee executes and is
bound by pursuant to an Acquisition Agreement dated November __, 2004 and any
collateral documents, which are incorporated by reference into this Agreement,
stemming therefrom.
11. Non-Solicitation. Employee agrees that while employed with the
Company, and for a period of two (2) years following separation from employment
with the Company for any reason, Employee shall not, directly or indirectly,
individually or as an employee, shareholder, agent, independent contractor or
officer/director of any entity: (a) enter into, or attempt to enter into, any
business or commercial relationship or dealings with any of the Company's
Customers or with any of the Company's Employees; (b) dissuade or attempt to
dissuade any of the Company's Customers or any of the Company's Employees from
continuing their relationship and dealings with the Company.
12. The Company's Business Information. Employee acknowledges and
agrees that the compilation of information, including business records and all
information or data connected with or related to the Company, such as, by way of
example and not limitation, all techniques, methods and methodologies, systems,
facts or other information, of whatever kind in whatever form, concerning the
Company's business including the identities of customers and customer lists and
customer contracts (collectively, the "Company's Business Information"), are the
Company's valuable, special and unique assets, which constitute trade secrets
and/or valuable confidential business information and/or concern, reflect and/or
are the product of substantial relationships with specific prospective or
existing customers and which further reflect customer goodwill and/or
extraordinary or specialized training, and Employee shall not disclose the
Company's Business Information, or any parts thereof, to any person,
association, partnership, corporation or other entity, except as required in the
performance of Employee's job duties hereunder. This covenant survives the
termination of this Agreement. Employee shall not remove the Company's Business
Information from the Company's offices at any time during the Employment Period
or after without the express written consent of the Company.
13. Reasonableness of Restrictive Covenants/Irreparable Injury.
Employee and the Company acknowledge and agree that: (a) the restrictive
covenants contained in this Agreement are reasonable with respect to duration,
scope and their effects on Employee and the public health, safety and welfare;
(b) the Company's Business Information is of unique and special character that
gives this information a special and proprietary value to the Company as set
forth in the immediately preceding paragraph; (c) the restrictive covenants in
this Agreement are necessary to protect the legitimate business interests of the
Company; (d) a violation of these covenants by Employee would cause irreparable
injury and loss to the Company; and (e) the Company will be providing unique and
specialized training to Employee.
14. Equitable Remedies. If there is a breach or threatened breach by
Employee of Employee's obligations pursuant to Sections 11, 12 or 13 herein,
Employee hereby acknowledges and stipulates that the Company shall not have an
adequate remedy at law and shall suffer irreparable harm, and, therefore, it is
mutually agreed and stipulated that, in addition to any other remedies at law or
in equity that the Company may have, the Company shall be entitled: (a) to
obtain in a court of law or equity a temporary or permanent injunction
restraining Employee from any further breach or threatened breach of such
provisions; (b) to reimbursement from Employee for any attorneys' fees and costs
through appeal incurred as a result thereof; and (c) to withhold and apply
payments due to Employee from the Company, if any, toward such attorneys' fees
and costs.
15. Attorneys' Fees. In the event the Company is required to bring
an action in court to enforce this Agreement, Employee agrees to pay the
Company's reasonable attorneys' fees and costs incurred through appeal.
16. Authority to Contract. The Company hereby represents and
warrants to Employee, and Employee hereby represents and warrants to the
Company, that each of them is authorized to enter into this Agreement and be
bound by its terms. Employee hereby represents and warrants to the Company that
Employee is not bound by or a party to any restrictive covenant that might
impact Employee's ability to lawfully accept and undertake employment hereunder,
and Employee hereby agrees to indemnify and hold the Company harmless from any
and all loss and liability in connection with any restrictive covenant with any
third party concerning Employee, with such indemnification to include but not be
limited to attorneys' fees and costs through appeal, and the cost of any
judgment or settlement.
17. Successors; Binding Agreement. At the sole option of the
Company, the rights of the Company under this Agreement may be assigned or
transferred to any subsidiary, affiliate or successor of the Company (whether by
purchase, merger, consolidation or otherwise). No rights or obligations of
Employee under this Agreement may be assigned or transferred by Employee.
18. Notices. For the purposes of this Agreement, notices, demands
and all other communications provided for in this Agreement shall be in writing
and shall be deemed to have been provided when delivered either personally or
via FedEx or other overnight delivery service, addressed as follows:
If to Employee:
Xxxxxxx Xxxxxx
00000 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
If to the Company:
Voxx Corporation
Attn: Human Resources Director
00000 Xxxxxxxx Xxxx.
Xxxxx 000
Xxxxx, Xxxxxxx 00000
with a copy to:
Xxxxxx X. Xxxxxxxxx, Esquire
Simon, Xxxxxxxxx & Xxxxxxxx, LLP
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
19. Miscellaneous. No provision herein may be amended, modified, or
waived unless such amendment, modification or waiver is agreed to in a writing
signed by the Employee and by a duly authorized officer of the Company. No
waiver by the Company at any time of any breach by Employee of any condition or
provision of this Agreement shall be deemed a waiver of the same, similar or
dissimilar provisions or conditions at the same or at any prior or subsequent
time. No agreements or representations, oral or otherwise, express or implied,
with respect to the subject matter hereof have been made by either party which
are not set forth expressly in this Agreement. All covenants, agreements,
representations and warranties made herein or otherwise made in writing by any
Party pursuant hereto shall survive the execution and delivery of this Agreement
and the consummation of the transactions contemplated thereby.
20. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect. To the extent that any provision set forth herein is deemed by a court
of competent jurisdiction to be unenforceable, said provision shall be enforced
in such form and to the extent deemed lawful, as consistent with the intent of
the Parties as expressed herein.
21. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
22. Entire Agreement. This Agreement sets forth the entire agreement
of the Parties as to the subject matter contained herein and supersedes all
prior agreements, promises, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any officer, employee
or representative of either the Company or Employee regarding such subject
matter. Any prior agreement of the Parties as to the subject matter contained
herein is hereby terminated and canceled.
23. Company Policies and Procedures. Employee agrees to become
familiar with and comply with the Company's then existing policies and
procedures, including those set forth in the Company's Employee Handbook. In the
event of a conflict, however, the terms of this Agreement govern and supersede
any such policies and procedures, as applied to Employee.
24. Section Headings. The Section headings herein are for
convenience of reference only, and they form no part of this Agreement and shall
not affect its interpretation.
25. Construction. This Agreement shall be construed in accordance
with the fair meaning hereof and without any regard to any presumption or rule
requiring construction against the party causing the Agreement to be drafted.
26. Governing Law; Jurisdiction and Venue; Domestication and
Enforcement. Employee and the Company irrevocably and unconditionally agree that
any suit, action or other legal proceeding arising out of or relating to this
Agreement shall be brought in the courts of record of the State of Florida in
Miami-Dade County, Florida or in the United States District Court for the
Southern District of Florida. Both Parties waive trial by jury. The Parties
further: (a) consent to the jurisdiction of each such court in any such suit,
action or proceeding; (b) waive any objections they might have to the laying of
venue of any such suit, action or proceeding in any of such courts; and (c)
agree that service of any court paper may be effected in any manner and as may
be provided under the applicable laws or court rules in Florida. Employee agrees
further that the Company possesses the right to have any injunction, judgment or
other form of legal or equitable relief or award domesticated and/or otherwise
enforced by application to any court of competent jurisdiction outside the State
of Florida, as the Company deems fit.
27. AGREEMENT PREPARED BY THE COMPANY'S ATTORNEYS. THE PARTIES AGREE
AND ACKNOWLEDGE THAT THIS AGREEMENT IS BEING PREPARED BY COUNSEL FOR THE COMPANY
ON BEHALF OF THE COMPANY. THE PARTIES FURTHER AGREE THAT THE COMPANY'S ATTORNEYS
IN NO WAY REPRESENT EMPLOYEE WITH RESPECT TO THE PREPARATION OF THIS AGREEMENT
OR OTHERWISE, AND THAT EMPLOYEE HAS BEEN ADVISED AND UNDERSTANDS THAT EMPLOYEE
MAY SEEK INDEPENDENT COUNSEL TO ADVISE EMPLOYEE WITH RESPECT TO EMPLOYEE'S
RIGHTS, DUTIES AND OBLIGATIONS UNDER THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date first set above.
EMPLOYEE: VOXX CORPORATION
______________________________________ By: __________________________________
Print Name: __________________ Print Name: __________________________
Its: __________________________
Witness: _____________________________ Witness: _____________________________
Print Name: __________________________ Print Name: __________________________
EXHIBIT A TO EMPLOYMENT AGREEMENT
BETWEEN Xxxxxxx Xxxxxx AND Voxx Corporation
1. Employee's job title shall be as follows:
Executive Vice President of Operations.
2. Employee's employment shall commence on the Effective Date of
December 1, 2004, and shall end on the following date: November 30, 2006.
Accordingly, the Term of the Employment Agreement is two (2) years. In the event
that the Acquisition Agreement dated November 29, 2004, which is incorporated by
reference into this Agreement, fails to close as contemplated therein, Company,
at its sole discretion, shall determine whether to continue under the terms of
or to terminate this Agreement.
3. Employee's initial job duties shall include the following:
Strategic planning and execution to enhance profitability, participation in the
sales process to help drive optimal performance, develop and direct the
management of the company's contact centers to ensure client satisfaction, P&L
responsibility, provide guidance and motivation to managers and other staff,
maintain effective client rapport, retain existing business while building the
base business.
4. Employee shall report directly to the following individual(s):
Chief Operating Officer.
5. Employee is initially assigned to the following location:
Corporate office in Miami, FL
6. During the Employment Period, the Employee shall be compensated
at the rate of $20,000 per month, gross compensation. This gross compensation
figure represents all remuneration deriving from Employee's employment with the
Company, irrespective of the source entity from which such compensation may be
paid, except for such fringe employment benefits as the Company may provide in
its sole discretion. Employee will receive a $1,000 monthly auto allowance. In
addition, employee shall be eligible for an annual bonus of $60,000 subjected up
or down after annual performance evaluation.
________________________
Employee Signature
________________________
Company
By _____________________
Its: ___________________
EXHIBIT 10-10
CONSULTANT SERVICES AGREEMENT
This Agreement is made between EPIXTAR BPO SERVICES CORP. D/B/A EPIXTAR
INTERNATIONAL CONTACT CENTER GROUP LTD., a corporation organized and existing
under the laws of the State of Delaware with offices located at 00000 Xxxxxxxx
Xxxx., 0xx Xxxxx, Xxxxx, Xxxxxxx 00000 ("Company"), and DDM CONSULTING, INC., a
corporation
organized and existing under the laws of the State of Virginia with offices
located at 0000 Xxxx Xxxxx, Xxxxxxxxxx, XX 00000 ("Consultant"); PROVIDED,
HOWEVER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THIS
AGREEMENT SHALL BE OF NO LEGAL FORCE OR EFFECT UNLESS AND UNTIL THE ACQUISISTION
CONTEMPLATED BY THE ACQUISISTON AGREEMENT DATED OF EVEN DATE HEREWITH (THE
"ACQUISITION AGREEMENT") BY AND AMOUNG EPIXTAR CORP. AND THE SHAREHOLDERS OF
INNOVATIVE MARKETING STRATEGIES, INC. IS FULLY AND FINALLY CONSUMMATED (THE
"ACQUISITION").
Recitals
WHEREAS, Company and the shareholders of Innovative Marketing Strategies, Inc.
("IMS") have entered into an agreement for the acquisition of IMS ("Acquisition
Agreement");
WHEREAS, Consultant is one of the shareholders of IMS and IMS has an outstanding
liability owed to Consultant;
WHEREAS, pursuant to said Acquisition Agreement, Epixtar has agreed to assume
the liability owed to DDM by IMS and in consideration for the assumption of said
liability, Consultant is entering into this Agreement.
NOW THEREFORE, in consideration of the mutual covenants contained herein and for
other good and valuable consideration, the parties agree as follows:
In consideration of the mutual promises set forth below it is agreed by
and between Company and Consultant as follows:
Section I. Nature of Services
Consultant will perform consulting and broker services on behalf of the
Company and/or any of its subsidiaries or affiliates with respect to all matters
relating to or affecting the development of new or existing business for the
Company. As a part of Consultant's services, Consultant shall submit various BPO
services and/or teleservices proposals from prospective customers to Company.
This includes submitting Company's marketing materials and proposals to
prospective customers. Company shall accept any such proposals submitted to
Company by Consultant that are within Company's capacity and ability to perform
and that Company deems commercially reasonable. Nothing in this Agreement shall
prohibit Company from marketing its services to other customer entities which
have not been introduced by Consultant.
Section II. Epixtar Designee
Company will, from time to time, and through its Chief Executive Officer or
its Chief Operating Officer, designate an officer that Consultant may
communicate through. Consultant must not incur any expense, perform any services
and/or direct any employee of Epixtar Corp. or any of its subsidiaries or
affililiates without having first contacted the designated officer to receive
permission, which for purposes of this Agreement shall initially be the
Executive Vice President, Xxxxxx Xxxxx.
Section III. Place of Work; Expenses
Consultant's services will be rendered largely at Consultant's place of
business, but Consultant shall, on reasonable request of Company, come to
Company's address listed above or other places designated by the Company, to
meet with representatives of the Company. Company shall reimburse Consultant for
all expenses approved in accordance with Section II of this Agreement and
incurred by Consultant in carrying out Consultant's duties under this Agreement
within thirty (30) days after Company's receipt of an invoice therefor.
Consultant shall obtain Company's written approval, by either a signed invoice
or otherwise, prior to making any transaction.
Section IV. Time Devoted to Work
In the performance of the services, the hours Consultant is to work on any
given day will be within Consultant's control and Company will rely upon
Consultant to put in such number of hours as is reasonably necessary to fulfill
the spirit and purpose of this Agreement. There undoubtedly will be some weeks
during which Consultant may not perform any services at all or, on the other
hand, may devote a substantial amount of time to work. Nevertheless, any and all
work shall be coordinated with the Epixtar Designee as set forth in Section II
of this Agreement.
Section V. Payment
On award of business to Company by a customer introduced to Company by
Consultant and accepted by Company (a "Customer"), Consultant shall assist in
the implementation of the Customer's program, using information provided by
Customers, various BPO services and/or teleservices programs, to achieve
Customers' and Company's objectives. Company will pay Consultant a set
commission percentage for each program brokered by Consultant. This commission
percentage is based on the average monthly payroll hours according to the
schedule below. For purposes of this Agreement, a "payroll hour" shall refer
only to hours that representatives/agents of Company are working on any
particular Program at any given time.
PAYROLL HOUR COMMISSION PERCENTAGE
--------------------- ---------------------------
< $10.99 Seven Percent (7%)
$11.00 - $12.00 Eight Percent (8%)
$12.01 - $13.00 Nine Percent (9%)
$13.01 - $14.00 Ten Percent (10%)
$14.01 - $15.00 Nine Percent (9%)
> $15.01 Eight Percent (8%)
Consultant, from the date when calling commences on a program (for existing
programs, as those listed in Exhibit A to this Agreement and under "Exceptions"
below, such date shall be the effective date of this Agreement) and for the
first two (2) years therefrom, shall receive One Hundred Percent (100%) of the
commission percentage in the table above for such program. Beginning in year
three (3) of a program, Consultant shall receive Seventy-five Percent (75%) of
the Commission Percentage listed above for such program. In the event this
Agreement is renewed in accordance with Section VII herein, in years four (4)
and years five (5) of a program, Consultant shall be paid Fifty Percent (50%)
and Twenty-five Percent (25%) respectively, of the Commission Percentage listed
above for such program. Any and all commissions due Consultant shall be payable
through the earlier of (i) the termination of any specific program or, (ii) the
termination of this Agreement.
In the event that Consultant must pay a third-party commission on any
program (and with the prior approval of Epixtar), the Commission Percentage
listed above shall be adjusted upward, if necessary, such that Consultant will
net no less than a two percent (2%) commission after paying the third-party
commission.
Exceptions
The commission table above shall not apply to two (2) specific campaigns.
These campaigns are Discover Financial Services, Inc. (DFSI) and CompuCredit
Corp. Consultant shall receive Commission Percentages of Seven Percent (7%) for
DFSI and Five Percent (5%) for CompuCredit for the life of those particular
campaigns.
Section VI. Payment Terms
Company shall begin making payments to Consultant effective December 1, 2004
and upon the signing of this Agreement shall receive a commission advance of
Thirty Five Thousand Dollars ($35,000.00), which shall be deducted from
succeeding commission payments due Consultant. Company will directly pay to
Consultant all fees due within thirty (30) days of receipt by Company of a
Customer's paid invoice statement. Company will provide Consultant, on a monthly
basis, with a copy of all Customer invoices for each Program that Consultant is
entitled to receive payment upon. Consultant warrants that beginning on December
1, 2004 he shall no longer accept commission payments from IMS or its
subsidiaries. In the event it is found that Consultant has accepted commission
payments from IMS or its subsidiaries, said payments will be set-off from
succeeding commission payments due Consultant by Company.
Section VII. Term
Unless earlier terminated as set forth herein, this Agreement will run for
three (3) years from its effective date, and shall be automatically renewed for
successive one-year terms unless either party gives written notice of
termination thirty (30) days prior to any expiration date.
Section VIII. Status of Consultant
This Agreement calls for the performance of the services of Consultant as an
independent contractor and Consultant will not be considered an employee of
Company for any purpose.
Section IX. Services for Others
In as much as Consultant will acquire or have access to information which is
of a highly confidential nature, it is expected that Consultant will not perform
any Similar Services for any new company or firm that he has not previously done
work for in the past twelve (12) months without Company's prior written consent.
Consultant will also not perform any new Similar Services for any client he had
prior to the closing of the Acquisition Agreement. This exclusivity requirement
shall remain in effect for a period of three (3) years from the effective date
of this Agreement. "Similar Services" as used herein shall mean brokerage
services for the business of providing inbound and/or outbound telephone call
center services. This restriction shall automatically terminate if Consultant
terminates this Agreement due to Company's default.
Section X. Services after Termination
Consultant agrees that, for a period of two (2) years following the
termination of this agreement, Consultant will not perform any Similar Services
for any person, firm or corporation engaged in the business of providing call
center services in the United States, the Philippines, India, Canada, the
Caribbean and any other future site that Company is at that time doing business.
This restriction shall automatically terminate if Consultant terminates this
Agreement due Company's default.
In the event that a Customer terminates the Customer's relationship with
Company as a result of a default by Company, including without limitation an
uncured default by Company in making scheduled payments under the promissory
note issued by Company in favor of Consultant (and his fellow shareholders) as
partial payment for the Acquisition, the foregoing restrictions in Sections VIII
and IX shall not apply with respect to such Customer, and Consultant may provide
Similar Services with regard to such Customer to any other person, firm or
entity.
Section XI. Non-Solicitation; Confidentiality
Company recognizes and acknowledges that the list of Consultant's contacts,
as it may exist from time to time, is a valuable, special and unique asset of
Consultant. Except as contemplated by this Agreement, Company will not, during
or after the term of this Agreement, use, disclose, divulge or in any other
manner make available the list of Consultant's contacts, or any part thereof, to
any person, firm, corporation, association or other entity for any reason or
purpose whatsoever which directly or indirectly benefits Company or injures
Consultant's relationships with such contacts. Neither party shall, without the
express written consent of the other party, disclose or divulge the existence or
terms of this Agreement with any other party (with the exception of each party's
legal counsel and financial advisors).
Without Consultant's involvement or express written consent, Company shall
not, either directly or indirectly, as an individual, proprietor, partner,
stockholder, creditor, consultant, employee, officer, agent, representative,
investor or in any other capacity or manner whatsoever, contact, solicit,
attempt to solicit, accept a commission for, or otherwise be involved in any
transaction(s) with any person, firm, corporation, or other entity that
Consultant at any time introduces to Company until such time as an agreement is
reached between Company and said person, firm, corporation or other entity. At
such time that an agreement is reached between Company and said person, firm,
corporation or other entity, that person, firm,
corporation or other entity shall cease to be a valuable, special and unique
asset of Consultant and shall thereafter be a valuable, special and unique asset
of Company. The foregoing shall not apply to any transaction that Company has
entered into prior to the date of this Agreement.
Consultant agrees that he shall not, under any circumstances, interfere with
or attempt to directly or indirectly solicit or hire any past or present
employees of Epixtar Corp. or any of its affiliates or subsidiarIES.
Section XII. Termination
If this Agreement is terminated for any reason other than a breach by
Consultant of the terms and conditions contained herein, Company shall remain
liable for any and all commissions owed to Consultant from the effective date of
termination and up until that time that the Program(s) is(are) terminated.
Section XIII. Waiver
The failure of either party at any time to enforce any rights or remedy
available to it under this Agreement or otherwise with respect to any breach or
failure by the other party shall not be construed to be a waiver of such right
or remedy with respect to any other breach or failure by the other party.
Section XIV. Severability
In the event that provisions of or restrictions contained in this Agreement
are held by a court of competent jurisdiction to be invalid or unenforceable,
and are not reformed by such court, the remaining provisions and restrictions
contained in this Agreement shall nevertheless continue to be valid and
enforceable as though the invalid or unenforceable provisions or restrictions of
this Agreement had not been included.
Section XV. Notices
Any notices or demands given pursuant to this Agreement or under any statute
shall be given in writing by facsimile, e-mail or similar communication, or by
certified mail, return receipt requested at the following addresses:
To Company at: Epixtar BPO Services Corp. d/b/a Epixtar International Contact
Center Group Ltd.
Attn: Office of the Corporate Secretary
00000 Xxxxxxxx Xxxx.
Xxxxx 000
Xxxxx, XX 00000
Tel #: (000) 000-0000
Fax #: (000) 000-0000
To Consultant at: DDM Consulting, Inc.
Attn: Xxxxx Xxxxxxxx
0000 Xxxx Xxxxx
Xxxxxxxxxx, XX 00000
Tel #: (000) 000-0000
Fax #: (000) 000-0000
Section XVI. Construction
Each and every term and provision of this Agreement has been mutually agreed
to and negotiated by the parties hereto and should be construed simply according
to its fair meaning and not strictly for or against any party.
Section XVII. Governing Law and Arbitration
This Agreement shall be governed by and construed in accordance with the
laws of the State of Florida. Any dispute, controversy or claim arising out of,
in connection with, or relating to this Agreement or any breach or alleged
breach hereof, shall be settled by arbitration in Miami-Dade County, Florida
pursuant to the rules then in effect of the American Arbitration Association, or
at any place or under any other form of arbitration mutually acceptable to both
parties. Any award rendered shall be final and conclusive upon the parties and a
judgment thereon may be entered in the highest court of the forum having
jurisdiction. In the event there is any litigation between the parties arising
directly and/or indirectly out of this Agreement or the transactions and
services contemplated hereby, the prevailing party in such litigation shall be
entitled to recover from the other litigation costs and expenses, including
reasonable attorneys' fees.
Section XVIII. Assignment
This Agreement may not be assigned by either party without the prior written
consent of the other party, which consent may be given or withheld in the sole
and absolute discretion of such other party. This section in no way prevents
Company assigning this Agreement to a subsidiary controlled by Company or an
affiliate under control of a common parent. Any assignment by Company pursuant
to this Section shall not release Company as guarantor of the payments as
contemplated in this Agreement.
Section XIX. Modification
This Agreement may not be modified or altered in any respect unless
evidenced in writing, signed by both parties and attached hereto. No oral
waivers of this provision shall be binding.
Section XX. Headings
The headings and titles herein have been inserted for reference only and
shall not have the effect of modifying the express terms and provisions
contained in this Agreement.
IN WITNESS WHEREOF, Signed on behalf of Epixtar International Contact Center
Group Ltd. and DDM Consulting, Inc. by its authorized representatives.
EPIXTAR INTERNATIONAL CONTACT CENTER DDM CONSULTING
GROUP LTD.
By__/s/ Xxxxx Srour___________________ By__/s/ Xxxxx X. Xxxxxxxx ____________
Date_11/29/04_________________________ Date 11/29/04 ________________________
Exhibit A
List of campaigns that are subject to the Commission Percentages reflected in
Section V of this Agreement:
APEX CoVantage
Tranzact
Omniquest1
Link Consulting
Asian Call Centres
Advanced Debt Solutions
19 Communications.
