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EXHIBIT 10.12
EMPLOYMENT AGREEMENT
AGREEMENT dated the 12 day of Nov, 1998, between United States
Telecommunications, Inc., a Delaware corporation with an office at 0000 000xx
Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000 (the "Company"), and Xxxxx
Xxxxxxxx, residing at 0000 Xxxx Xxxx., Xxxxxx Xxxx Xxxxx, Xxxxxxx 00000 (the
"Employee").
WITNESSETH:
WHEREAS, the Company desires to employ the Employee and the Employee is willing
to accept such employment, all on the terms hereinafter set forth;
NOW, THEREFORE, the parties agree as follows:
1. EMPLOYMENT. The Company hereby employs the Employee as its Business
Coordinating Specialist on the terms hereinafter set forth for a period
of five (5) years from the date of this Agreement, and the Employee
hereby accepts such employment.
2. DUTIES. The Employee will render services in such executive,
supervisory and general administrative capacities as the Board of
Directors of the Company shall from time to time reasonably determine.
Without limiting the foregoing, the Employee will serve as the
Company's Business Coordinating Specialist; shall oversee the Company's
compliance with tax laws; shall oversee the Company's Human Resource
Department; and shall perform various banking functions. The office of
the Company located at 0000 000xx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000 ("Company's Base") will constitute the Employee's base of
operations. The Employee, though, will primarily perform her work from
her home office in Florida, and work at the Company Base when necessary
to complete her duties. The Employee may render services away from this
area on a temporary basis and travel wherever the Company may
reasonably require. In connection with all such trips, the Employee
will be advanced or reimbursed for all reasonable travel and living
expenses provided the Employee submits appropriate documentation for
such expenses satisfactory to the Company. The Employee will be
entitled to first class travel and hotel accommodations.
3. EXCLUSIVITY. During her employment with the Company the Employee will
not (i) act for her own account in any manner which is competitive with
any of the business of the Company or which would interfere with the
performance of her duties under this Agreement. Notwithstanding the
foregoing, the Employee may own equity securities of any company
engaged in securities exchange or regularly quoted in an
over-the-counter market by one or more members of a national or an
affiliated securities association.
4. COMPENSATION.
4.1 Salary. During the first year of her employment, the Company
will pay the Employee a salary at the rate of $100,000 per
year in equal, weekly installments. Thereafter the Company
shall raise the Employee's salary by six percent (6%)
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annually on the month and date on which this Agreement was
signed provided Employee's performance remains satisfactory,
and also provided that the Company's business performance
allows for salary raises. The Employee will not be entitled to
overtime or other additional compensation as a result of
services performed during evenings, weekends, holidays or at
other times.
4.2 Deductions. The Company will deduct and withhold from any
compensation payable to the Employee under this Agreement such
amounts as the Company is required to deduct and withhold by
law. The Company may also deduct and withhold from any such
compensation, to the extent permitted by law, such amounts as
the Employee may owe to the Company and any other amounts
requested by Employee for withholding.
5. Expenses. The Company will reimburse the Employee for all proper,
normal and reasonable expenses incurred by the Employee in performing
her obligations under this Agreement upon the Employee's furnishing the
Company with satisfactory evidence of such expenditures. The Employee
will not incur any unusual or major expenditures without the Company's
prior written approval. Without limiting the foregoing, the Employee
will not, without the Company's prior written approval, incur any
travel expenses (including the cost of transportation, meals and
lodging) in excess of $1,000 in the aggregate for any one trip.
6. Benefits.
6.1 The Company and the Employee agree that the Employee will be
responsible for the cost of Employee's medical, hospital,
dental, or disability insurance, and that the Company shall
not be responsible for procuring or paying for any such
coverage. The Employee shall be permitted to participate in
any group medical, hospital, dental or disability insurance
plan in which the Company participates or makes available to
its employees. The Company and the Employee agree that the
Company shall not be responsible for the cost of an automobile
to enable the Employee to perform her duties under this
agreement, nor shall the Company be responsible for the costs
of insuring, maintaining, repairing or operating such
automobile. The Company and the Employee acknowledge that all
of the expenses represented in this Section 6.1 were
contemplated by, and included in, Employee's annual salary set
forth in Section 4.1 above.
6.2 The Employee will be entitled to 20 days paid vacation during
each calendar year (January 1 to December 31) in addition to
any paid holidays which the Company observes. In addition, the
Employee shall be entitled to fourteen (14) days paid sick
leave. Vacation and sick leave must be used during each
calendar year; if it is not used, it will be forfeited. No
payment will be made for unused vacation or sick leave time.
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6.3 The Employee's salary and other rights and benefits under
this Agreement will not be suspended or terminated because
the Employee is absent from work due to illness, accident or
other disability, provided that such absence is deemed
medically necessary as set forth under Section 7 below. The
provisions of this Section 6.3 will not limit or affect the
rights of the Company under Section 7.
7. TERMINATION.
7.1 Death. This Agreement shall automatically terminate upon the
death of the Employee, and all monetary obligations of
Company to Employee as set forth herein (including Employee's
salary set forth in Section 4.1 above and reimbursement for
expenses as set forth in Section 5 above) shall be prorated
to the date of death and paid to Employee's estate.
7.2 Disability. If the Employee is unable to perform
substantially all of her duties under this Agreement because
of illness, accident or other disability (collectively
referred to as "Disability"), and the Disability continues
for more than three (3) consecutive months or an aggregate of
more than six (6) months during any twelve (12) month period,
then the Company may cause the Employee to be examined by a
doctor or doctors selected by the Company, and the Employee
will submit to all required examinations and will cooperate
fully with such doctor or doctors and, if requested to do so,
will make available to them her medical records. The
Employee's own doctor may be present.
(i) If the examining doctor or doctors and the
Employee's own doctor determine that the Employee's
absence from work is medically necessary, the
Company will not suspend its obligations to the
Employee under this Agreement.
(ii) If the examining doctor or doctors and the
Employee's own doctor determine that the Employee's
absence from work is not medically necessary, the
Company may suspend its obligations to the Employee
under Sections 4.1, 4.2 and 5 on or after the
expiration of said 3- or 6-month period until the
Company terminates such suspension as hereinafter
provided. The Company will terminate any such
suspension after the Disability has, in fact, ended
and after it has received written notice from the
Employee that the Disability has ended and that she
is ready, willing and able to perform fully her
services under this Agreement. Termination of such
suspension will be no later than one week after the
Company has received such notice from the Employee.
If any one or more periods of suspension continue
pursuant to the provisions of this Section for 3
consecutive months or 6 months in the aggregate,
then the Company may at any time prior to
termination of the then current period of
suspension, terminate the Employee's employment
hereunder.
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(iii) If the examining doctor or doctors and the
Employee's doctor do not agree as to whether the
Employee's absence from work is medically necessary,
they shall consult with a third doctor whom they
choose by agreement, and whose determination as to
the medical necessity of Employee's absence shall be
final.
7.3 Additional Grounds for and Methods of Termination. In
addition to the methods of termination set forth in Sections
7.1 and 7.2 above, this Agreement may be terminated before
its normal expiration date by any of the following methods:
(i) By Employee upon the giving of sixty (60) days
written notice to Company;
(ii) By Company giving written notice to Employee for
cause, which said cause shall be limited to (a)
Employee's habitual intoxication or drug addiction;
(b) Employee's being finally convicted of a felony
involving moral turpitude; (iii) a final
adjudication by a Court of competent jurisdiction of
Employee being mentally "incapacitated," as that
term is defined in accordance with the statutes or
case law of the State of Florida; or (d) Employee's
substantial and material breach of any of the terms
of this Agreement including but not limited to
failure to improve poor performance or repeated
failure to satisfy company expectations.
7.4 Severance. If this Agreement is terminated pursuant to
Sections 7.1, 7.2 or 7.3, Employee shall only be entitled to
payment of any accrued salary and outstanding expense
reimbursement. If this Agreement is terminated for any other
reason, the Company shall pay as severance to the Employee
the compensation to which Employee would be entitled pursuant
to this Agreement had the Agreement not been terminated.
8. RESULTS OF THE EMPLOYEE'S SERVICES.
8.1 The Company will be entitled to and will own all the results
and proceeds of the Employee's services under this Agreement,
including, without limitation, all rights throughout the
world to any copyright, patent, trademark or other right and
to all ideas, inventions, products, programs, procedures,
formats and other materials of any kind created or developed
or worked on by the Employee during and as a result of her
employment by the Company; the same shall be the sole and
exclusive property of the Company; and the Employee will not
have any right, title or interest of any nature or kind
therein. Without limiting the foregoing, it will be presumed
that any copyright, patent, trademark or other right and any
idea, invention, product, program, procedure, format or
material created, developed or worked on by the Employee at
any time during the term of, and as a result of, her
employment will be a result or proceed of the Employee's
services under this Agreement. The Employee will take such
action and execute such documents as
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the Company may request to warrant and confirm the Company's
title to ownership of all such results and proceeds and to
transfer and assign to the Company any rights which the
Employee may have therein. The Employee's right to any
compensation or other amounts under this Agreement will not
constitute a lien on any results or proceeds of the Employee's
services under this Agreement.
8.2 The Employee acknowledges that the violation of any of the
provisions of Section 8.1 will cause irreparable loss and harm
to the Company which cannot be reasonably or adequately
compensated by damages in an action at law, and, accordingly,
that the Company will be entitled to injunctive and other
equitable relief to enforce the provisions of that Section;
but no action for any such relief shall be deemed to waive the
right of the Company to an action for damages.
9. USE OF EMPLOYEE'S NAME, ETC. The Company is hereby granted the sole
and exclusive right during the term of her employment to make use of
and to permit others to make use of the Employee's name, pictures,
photographs, and other likenesses, and voice, in connection with the
advertising, publicity and exploitation of any products, or in
connection with the use or implementation of any of the Employee's
services hereunder or the proceeds thereof. This right shall cease
after termination of this Agreement by either party. In no event,
however, shall the Employee, directly or indirectly, be represented as
endorsing any product of commodity without the Employee's written
consent.
10. UNIQUENESS OF SERVICES. The Employee acknowledges that her services
hereunder are of a special, unique, unusual, extraordinary and
intellectual character, the loss of which cannot be reasonably or
adequately compensated by damages in an action at law. Accordingly, the
Company will be entitled to injunctive and other equitable relief to
prevent or cure any breach or threatened breach of this Agreement by
the Employee, but no action for any such relief shall be deemed to
waive the right of the Company to an action for damages.
11. NEGATIVE COVENANTS
11.1 The Employee will not, during or after the term of this
Agreement, disclose to any third person or use or take any
personal advantage of any confidential information or any
trade secret of any kind or nature obtained by her during the
term hereof or during her employment.
11.2 To the full extent permitted by law, the Employee will not for
a period of six months following the termination of her
employment with the Company:
(i) attempt to cause any person, firm or corporation
which is a customer of or has a contractual
relationship with the Company at the time of the
termination of her employment to terminate such
relationship with the
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Company, and this provision shall apply regardless of
whether such customer has a valid contractual
arrangement with the Company;
(ii) attempt to cause any employee of the Company to leave
such employment;
(iii) engage any person who was an employee of the Company
at the time of the termination of her employment or
cause such person otherwise to become associated with
the Employee or with any other person, corporation,
partnership or other entity with which the Employee
may thereafter become associated;
(iv) engage in any activity or perform any services
competitive with any business conducted by the
Company at the time of such termination.
The provisions of this Section 11.2 will not apply if the
Employer wrongfully terminates the Employee's employment or if
the Employee properly terminates her employment for cause.
11.3 The Employee acknowledges that the violation of any of the
provisions of this Section 11 will cause irreparable loss and
harm to the Company which cannot be reasonably or adequately
compensated by damages in an action at law, and, accordingly,
that the Company will be entitled to injunctive and other
equitable relief to prevent or cure any breach or threatened
breach thereof, but no action for any such relief shall be
deemed to waive the right of the Company to an action for
damages.
12. GOVERNING LAW; REMEDIES
12.1 This Agreement has been executed in the State of Florida and
shall be governed by and construed in all respects in
accordance with the law of the State of Florida.
12.2 Except as otherwise expressly provided in this Agreement, any
dispute or claim arising under or with respect to this
Agreement will be resolved by arbitration in Tampa, Florida,
in accordance with the National Rules for the resolution of
Employment Disputes of the American Arbitration Association
before a panel of three (3) arbitrators, one appointed by the
Employee, one appointed by the Company, and the third
appointed by said Association. The decision or award of a
majority of the arbitrators shall be final and binding upon
the parties. Any arbitral award may be entered as a judgment
or order in any court of competent jurisdiction.
12.3 Notwithstanding the provisions for arbitration contained in
this Agreement, the Company will be entitled to injunctive and
other equitable relief from the courts as provided in Section
8.2, 11 and 12.3 and as the courts may otherwise determine
appropriate; and the Employee agrees that it will not be a
defense to any request for such relief that the Company has an
adequate remedy at law. For purposes of
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any such proceeding the Company and the Employee submit to
the non-exclusive jurisdiction of the courts of the State of
Florida and of the United States located in the County of
Pinellas, State of Florida, and each agrees not to raise and
waives any objection to or defense based on the venue of any
such court of forum non conveniens.
12.4 A court of competent jurisdiction, if it determines any
provision of this Agreement to be unreasonably in scope, time
or geography, is hereby authorized by the Employee and the
Company to enforce the same in such narrower scope, shorter
time or lesser geography as such court determines to be
reasonable and proper under all the circumstances.
12.5 The Company and the Employee will also have such other legal
remedies as may be appropriate under the circumstances
including, inter alia, recovery of damages occasioned by a
breach. The rights and remedies of the Company and the
Employee are cumulative and the exercise or enforcement of
any one or more of them will not preclude the Company or the
Employee from exercising or enforcing any other right or
remedy.
13. INDEMNITY. To the extent permitted by law, the Company will indemnify
the Employee against any claim or liability and will hold the Employee
harmless from and pay any expenses (including, without limitation, legal
fees and court costs), judgments, fines, penalties, settlements and other
amounts arising out of or in connection with any act or omission of the
Employee performed or made in good faith on behalf of the Company pursuant
to this Agreement, regardless of negligence. The Company will not be
obligated to pay the Employee's legal fees and related charges of counsel
during any period that the Company furnishes, at its expense, counsel to
defend the Employee; but any counsel furnished by the Company must be
reasonably satisfactory to the Employee. The foregoing provisions will
survive termination of the Employee's employment with the Company for any
reason whatsoever and regardless of fault.
14. SEVERABILITY OF PROVISIONS. If any provision of this Agreement or the
application of any such provision to any person or circumstance is held
invalid, the remainder of this Agreement, and the application of such
provision other than to the extent it is held invalid, will not be
invalidated or affected thereby.
15. WAIVER. No failure by the Company or the Employee to insist upon the
strict performance of any term or condition of this Agreement or to
exercise any right or remedy available to it will constitute a waiver. No
breach or default of any provision of this Agreement will be waived,
altered or modified. The Company may not waive any of its rights, except
by a written instrument executed by the Company; the Employee may not
waive any of her rights, except by a written instrument executed by the
Employee. No waiver of any breach or default will affect or alter any term
or condition of this Agreement, and such term or condition will continue
in full force and effect with respect to any other then existing or
subsequent breach or default thereof.
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16. MISCELLANEOUS.
16.1 This Agreement may be amended only by an instrument in writing
signed by the Company and the Employee.
16.2 This Agreement shall be binding upon the parties and their
respective successors and assigns. The Company may, without
the Employee's consent, transfer or assign any of its rights
and obligations under this Agreement to any corporation which,
directly or indirectly, controls or is controlled by the
Company or is under common control with the Company or to any
corporation succeeding to all or a substantial portion of the
Company's business and assets, provided that the Company shall
not be released from any of its obligations under this
Agreement, and provided further that any such transferee or
assignee agrees in writing to assume all the obligations of
the Company hereunder. Control means the power to elect a
majority of the directors of a corporation or in any other
manner to control or determine the management of a
corporation. Except as provided above, neither the Company nor
the Employee may, without the other's prior written consent,
transfer or assign any of its or her rights or obligations
under this Agreement, and any such transfer or assignment or
attempt thereat without such consent shall be null and void.
16.3 All notices under or in connection with this Agreement shall
be in writing and may be delivered personally or sent by mail,
courier, fax, or other written means of communication to the
parties at their addresses and fax numbers set forth below or
to such other addresses and fax numbers as to which notice is
given:
(a) if to the Company:
Xxxxxxx Xxxxxxx
President
United States Telecommunications, Inc.
0000 000xx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
(b) if to the Employee:
Xxxxx Xxxxxxxx
0000 Xxxx Xxxxxxxxx
Xxxxxx Xxxx Xxxxx, XX 00000
Notice will be deemed given on receipt.
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16.4 Section headings are for purposes of convenient reference
only and will not affect the meaning or interpretation of any
provision of this Agreement.
16.5 This Agreement constitutes the entire agreement of the parties
and supersedes any and all prior agreements or understandings
between them.
16.6 The Employee has reviewed this Agreement with counsel of her
choice, and has not signed this Agreement under coercion,
force or duress.
16.7 The prevailing party in any dispute arising between the
Company and the Employee under this Agreement shall be
entitled to an award of reasonable attorney fees.
- IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
Board of Directors
/s/ Xxxxxxx Xxxxxxx
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President
/s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
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