Employment Agreement
EMPLOYMENT AGREEMENT
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THIS AGREEMENT (the "Agreement") effective the 23rd day of July 2002,
entered into by and between Xxxxxxx Xxxxx Xxxxx (Employee") and INVICTA
GROUP INC. A Nevada Corporation doing business as Don't Pay Full Fare ("the
Company"), with its principal place of business in Miami, Florida.
The Company desires to employ Employee as its CHIEF OPERATING OFFICER
(COO) and Employee desires to be so employed and;
NOW, THEREFORE, the parties desire to memorialize herein the terms and
conditions of Employee's employment. In consideration of the mutual covenants
and promises contained herein and other good and valuable consideration, the
parties hereby acknowledge the receipt and sufficiency of which hereto, the
parties agree as follows:
POSITION & DUTIES
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Employee shall serve as Vice President upon the terms set forth in this
Agreement. Employee shall have the responsibilities inherent in this position
and shall report to the Board of Directors of the Company, and Employee shall
perform any other duties reasonably required by Company's Board of Directors.
The primary duties are: implement corporate business plan, approve subsidiary
annual biz plans and financial projections, review quarterly and annual
financials, approve mergers and acquisitions, and increase corporate market
valuation.
TERM OF EMPLOYMENT.
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Subject to the provisions of this Agreement, the term of Employee's
employment under this Agreement ("Period of Employment") shall commence on July
23, 2002, until August 1, 2004 (the "Initial Term"). Unless either party
elects to terminate this Agreement at the end of the initial or any renewal term
by giving the other party written notice of such election at least ninety (90)
days before the expiration of the then current term, this Agreement shall be
deemed to have been renewed for an additional term of one (1) year commencing on
the day after the expiration of the then current term. Either party may elect
not to renew this Agreement with or without cause, in which case this Section 2
shall govern Employee's termination, and not Section 5. Upon expiration of this
Agreement after notice of non-renewal, Company shall provide Employee all
compensation and benefits to which Employee is entitled through the date of
termination and thereafter Company's obligation hereunder shall cease.
COMPENSATION AND BENEFITS.
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SALARY. The Company shall pay Employee an annual base salary of One Hundred
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Twenty thousand dollars ($120,000.00) during the term of Employee's employment,
payable in accordance with the Company's semi-monthly payroll disbursement cycle
("Base Compensation").
Employee's base compensation shall be reviewed each year during the term of
Employee's employment, provided that the Company's performance criteria are
achieved as set forth by the Company each year.
EMPLOYEE shall be paid for Equity Funding (raised from referrals) equal to 5% of
funding: $100,000 raised results into $5,000.00 compensation to employee.
VACATION AND SICK LEAVE. Employee will be entitled to four (4) weeks
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of vacation, and sick leave equal to six (6) days per year, and 6 personal days.
Vacation time, personal days and sick leave shall not be accumulated after the
end of any year. Employee's use of vacation time shall be subject to the prior
approval of the CEO of the Company. Sick leave shall accumulate at the rate of
one half day per month.
EXPENSES. With the prior approval of the CEO, the Company shall
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reimburse Employee for all expenses incurred in connection with her duties on
behalf of the Company, provided that Employee shall keep, and present to the
Company, records and receipts relating to reimbursable expenses incurred by
Employee. Such records and receipts shall be maintained and presented in a
format, and with such regularity, as the Company reasonably may require in order
substantiating the Company's right to claim income tax deductions for such
expenses.
BENEFITS. Employee will be entitled to participate in the employee benefit
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plans or programs of the Company, including medical and life insurance and ISOP,
to the fullest extent possible, subject to the rules and regulations applicable
hereto and to standard eligibility and vesting requirements of any coverage and
shall be furnished with other services and perquisites appropriate to Employee's
position. Without limiting the generality of the foregoing, Employee shall be
entitled to the following benefits:
(a) Comprehensive medical insurance for Employee ;
(b) Eye insurance
(c) Dental insurance
(d) Group term life insurance with death benefits equal to one hundred
percent (100%) of base salary;
TERMINATION
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DUE TO DISABILITY
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(a) If Employee becomes unable to perform the duties specified
hereunder due to partial or total disability or incapacity resulting from a
mental or physical illness, injury or any other cause, Company will the payment
of Employee's base salary at its then current rate for a period of (4) weeks
following the date Employee is first unable to perform such duties due to such
disability or incapacity. Thereafter, Company shall have no obligation for base
salary, bonus or other compensation payments to Employee during the continuance
of such disability or incapacity. Company will continue to provide benefits to
Employee so long as Employee remains employed;
(b) If Employee is unable to perform the duties specified hereunder due to
partial or total disability or incapacity resulting from a mental or physical
illness, injury or any other cause for a period of TEN (10) consecutive weeks or
for a cumulative period of SEVENTY (70) business days during any FIVE (5) month
period ("Disability"), then, to the extent permitted by law, Company shall have
the right to terminate this Agreement thereafter, in which event Company shall
have no further obligations or liabilities hereunder after the date of such
termination except Employee will be deemed disabled and eligible for the
payments outlined in paragraph 5.1(a). EMPLOYEE REPRESENTS THAT TO THE BEST OF
EMPLOYEE'S KNOWLEDGE EMPLOYEE HAS NO MEDICAL CONDITION THAT COULD CAUSE PARTIAL
OR TOTAL DISABILITY THAT WOULD RENDER EMPLOYEE UNABLE TO PERFORM THE DUTIES
SPECIFIED IN THIS AGREEMENT OTHERWISE THE BENEFITS IN PARAGRAPH 5.1(a) SHALL BE
NULL AND VOID.
DUE TO DEATH. If Employee dies during the period of employment, Employee's
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employment with Company shall terminate as of the end of the calendar month in
which the death occurs. Company shall have no obligation to Employee or
Employee's estate for Base Compensation or other form of compensation or benefit
other than amounts accrued through the date of Employee's death, except as
otherwise required by law or by benefit plans provided at Company expense.
In the event of the termination of Employee's employment due to Employee's
death or Disability, Employee or Employee's legal representatives, as the case
may be, shall be entitled to:
(a) In the case of death, unpaid Base Compensation earned or accrued through
Employee's date of death and continued Base Compensation at a rate in
effect at the time of death, through the end of one (1) calendar year after
which Employee's death occurs or the end of the employment term which ever is
the lesser amount;
(b) Any performance or special incentive bonus earned but not yet paid;
(c) A pro rata performance bonus for the year in which employment terminates
due to death or Disability based on the performance of Company for the year
during which such termination occurs or, if performance results are not
available, based on the performance bonus paid to Employee for the prior year;
and
(d) Any other compensation and benefits to which Employee or Employee's
legal representatives may be entitled under applicable plans, programs and
agreements of Company to the extent permitted under the terms thereof,
including, without limitation, life insurance as provided in Section 4.5 above.
FOR CAUSE. Company may terminate Employee's employment relationship with
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Company at any time and with ten (10) days prior notice for Cause.
(a) For purposes of this Agreement, termination of employment of Employee by
the Company for cause means termination for the following reasons: (i)
frequent and unjustifiable absenteeism, other than solely by reason of
Employee's illness or physical or mental disability; (ii) failing to follow the
reasonable instructions of the President; (iii) proven dishonesty materially
injurious to the Company or to its business, operations, assets or condition (an
"Adverse Effect"); or gross violation of Company policy or procedure after being
warned, notified, or Employee's acknowledged, gross or willful misconduct, or
willful neglect to act, which misconduct or neglect is committed or omitted by
Employee in bad faith and had an Adverse Effect; and
(b) Company shall have no obligation to Employee for Base Compensation or
other form of compensation or benefits, except as otherwise required by law,
other than (a) amounts accrued through the date of termination, and (b)
reimbursement of appropriately documented expenses incurred by Employee before
the termination of employment, to the extent that Employee would have been
entitled to such reimbursement but for the termination of employment.
TERMINATION OBLIGATIONS.
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(a) All tangible Company property shall be returned promptly to Company upon
termination of the Period of Employment;
(b) All benefits to which Employee is otherwise entitled shall cease upon
Employee's termination, unless explicitly continued either under this Agreement
or under any specific written policy or benefit plan of Company;
(c) Upon termination of the Period of Employment, Employee shall be deemed
to have resigned from all offices and directorships then held with Company or
any Affiliate;
(d) Employee's obligations under this Section 5.5 on Termination
Obligations, Section 6 on Confidentiality and Non-Disclosure, Section 8 on
Inventions, Section 9 on Arbitration, and Section 11 on Non-Competition shall
survive the termination of the Period of Employment and the expiration or
termination of this Agreement; and
(e) Following any termination of the Period of Employment, Employee shall
cooperate fully with Company in all matters relating to completing pending work
on behalf of Company and the orderly transfer of work to other employees of
Company. Employee shall also cooperate in the defense of any action brought by
any third party against Company that relates in any way to Employee's acts or
omissions while employed by Company.
CONFIDENTIALITY AND NON-DISCLOSURE.
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Employee agrees to abide by the terms of the Confidentiality and
Non-Disclosure Agreement, and proprietary information policies now in effect by
the Company or as may be established in the future.
COMPANY PROPERTY.
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All products, records, designs, patents, plans, data, manuals, brochures,
memoranda, devices, lists and other property delivered to Employee by or on
behalf of the Company, all confidential information including, but not limited
to, lists of potential customers, prices, and similar confidential materials or
information respecting the business affairs of the Company, such as hardware
manufacturers, software developers, networks, strategic partners, business
practices regarding technology and schedules, legal actions and personnel
information, and all records compiled by Employee which pertain to the business
of the Company, and all rights, title and interest now existing or that may
exist in the future in and to any intellectual property rights created by
Employee for the Company, in performing Employee's duties during the term of
this Agreement shall be and remain the property of the Company. Employee agrees
to execute and deliver at a future date any further documents that the Company,
determines may be necessary or desirable to perfect the Company's ownership in
any intellectual or other property rights.
ARBITRATION.
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ARBITRAL CLAIMS. To the fullest extent permitted by law, all disputes
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between Employee (and Employee's attorneys, successors and assigns) and Company
(and its Affiliates, shareholders, directors, officers, employees, agents,
successors, attorneys and assigns) of any kind whatsoever, including, without
limitation, all disputes arising under this Agreement ("Arbitral Claims"), shall
be resolved by arbitration. All persons and entities specified in the preceding
sentence (other than Company and Employee) shall be considered third-party
beneficiaries of the rights and obligations created by this Section on
Arbitration. Arbitral Claims shall include, but are not limited to, contract
(express or implied) and tort claims of all kinds, as well as all claims based
on any federal, state or local law, statute or regulation, excepting only claims
under applicable workers' compensation law and unemployment insurance claims. By
way of example and not in limitation of the foregoing, Arbitral Claims shall
include any claims arising under Title VII of the Civil Rights Act of 1964, the
Age Discrimination in Employment Act, the Americans with Disabilities Act and
the Nevada Fair Employment and Housing Act;
PROCEDURE. Arbitration of Arbitral Claims shall be in accordance with the
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National Rules for the Resolution of Employment Disputes of the American
Arbitration Association, as amended ("AAA Employment Rules"), as augmented in
this Agreement. Arbitration shall be initiated as provided by the AAA Employment
Rules, although the written notice to the other party initiating arbitration
shall also include a statement of the claim(s) asserted and the facts upon which
the claim(s) are based. Arbitration shall be final and binding upon the parties
and shall be the exclusive remedy for all Arbitral Claims.
Either party may bring an action in court to compel arbitration under this
Agreement and to enforce an arbitration award. Otherwise, neither party shall
initiate or prosecute any lawsuit or administrative action in any way related to
any Arbitral Claim. Notwithstanding the foregoing, either party may, at its
option, seek injunctive relief. All arbitration hearings under this Agreement
shall be conducted in Las Vegas, Nevada. THE PARTIES HEREBY WAIVE ANY RIGHTS
THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRABLE CLAIMS, INCLUDING,
WITHOUT LIMITATION, ANY RIGHT TO TRIAL BY JURY AS TO THE MAKING, EXISTENCE,
VALIDITY OR ENFORCEABILITY OF THE AGREEMENT TO ARBITRATE;
ARBITRATOR SELECTION AND AUTHORITY. All disputes involving Arbitral Claims
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shall be decided by a single arbitrator. The arbitrator shall be selected by
mutual agreement of the parties within thirty (30) days of the effective date of
the notice initiating the arbitration. If the parties cannot agree on an
arbitrator, then the complaining party shall notify the AAA and request
selection of an arbitrator in accordance with the AAA Employment Rules. The
arbitrator shall have authority to award equitable relief, damages, costs and
fees to the same extent that, but not greater than, a court would have. The fees
of the arbitrator shall be split between both parties equally, unless this would
render this Section of Arbitration unenforceable, in which case the arbitrator
shall apportion said fees so as to preserve enforceability. The arbitrator shall
have exclusive authority to resolve all Arbitral Claims, including, but not
limited to, whether any particular claim is arbitral and whether all or any part
of this Agreement is void or unenforceable;
CONTINUING OBLIGATIONS. The rights and obligations of Employee and Company
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set forth in this Section on Arbitration shall survive the termination of
Employee's employment and the expiration of this Agreement.
PRIOR AGREEMENTS; CONFLICTS OF INTEREST. Employee represents to Company:
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(a) that there are no restrictions, agreements or understandings, oral or
written, to which Employee is a party or by which Employee is bound that prevent
or make unlawful Employee's execution or performance of this Agreement; (b) none
of the information supplied by Employee to Company or any representative of
Company or placement agency in connection with Employee's employment by Company
misstated a material fact or omitted information necessary to make the
information supplied not materially misleading; and (c) Employee does not have
any business or other relationship that creates a conflict between the interests
of Employee and the Company.
NON-COMPETITION. During the term of this Agreement Employee shall not:
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Start employment with, offer consulting services to, or otherwise become
involved in, advise or participate on behalf of any other company, entity or
individual, in the field of the Company; and
Individually or through any agent, for Employee's benefit or on behalf of
any other person or entity (i) solicit employees of the Company, to entice them
to leave the Company; or (ii) solicit or induce and third party now or at any
time during the term of this Agreement who is providing services to the Company,
through license, contract, partnership, or otherwise to terminate or reduce
their relationships with the Company.
MISCELLANEOUS PROVISIONS.
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AUTHORITY. Each party hereto represents and warrants that it has full
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power and authority to enter into this Agreement and to perform this Agreement
in accordance with its terms.
GOVERNING LAW. This Agreement shall be construed, interpreted and enforced
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in accordance with the laws of the State of Florida.
SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon, and inure to
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the benefit of, the parties hereto and their respective successors and assigns.
CAPTIONS. The captions of the sections of this Agreement are for
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convenience of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
SEVERABILITY. In the event that any provision of this Agreement shall be
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invalid, illegal or otherwise unenforceable, the validity, legality and
enforceability of the remaining provisions shall in no way be affected or
impaired thereby.
AMENDMENT. This Agreement may be amended only in writing executed by the
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parties hereto.
ATTORNEY'S FEES. In the event of a dispute the prevailing party shall be
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entitled to be reimbursed for its legal fees by the other party.
FINALITY OF AGREEMENT. The document, when executed by the parties,
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supersedes all other agreements of the parties with respect to the matters
discussed.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the day and year first set forth above.
"EMPLOYEE"
/s/ Xxxxxxx Xxxxx Xxxxx
_______________________
Xxxxxxx Xxxxx Xxxxx
INVICTA GROUP, INC
/s/ Xxxxxxx Xxxxxx, Co-Chairman
By: _____________________________
Xxxxxxx Xxxxxx, Co-Chairman
