MyECheck Employment Agreement
EMPLOYMENT
AGREEMENT,
entered
into and effective as of between MyECheck, Inc., a Delaware Corporation with
offices located at 0000 Xxxxxxx Xxxx, Xx Xxxxxx Xxxxx, XX 00000 ("Company"),
and
Xxxxxx X. Xxxxxx who resides at 000 Xxxxx Xxx., Xx Xxxxxx Xxxxx, XX 00000
("Employee").
1.
Employment, Duties and Acceptance
1.1
Company hereby employs Employee for the Term (as defined in Section 2 hereof)
to
render exclusive and full-time services in an executive capacity to Company
and
to the subsidiaries of Company engaged in the business of electronic check
services and in connection therewith to devote his best efforts to the affairs
of the Company and to perform such duties as Employee shall reasonable be
directed to perform by officers of the Company.
1.2
Employee hereby accepts such employment and agrees to render such services.
Employee agrees to render such services at Company's offices located in the
El
Dorado Hills area, but Employee will travel on temporary trips to such other
place or places as may be required from time to time to perform his duties
hereunder. During the Term hereof, Employee will not render any services
for
others, or for Employee's own account, in the business of electronic check
services and will not render any services to any supplier or significant
customer of Company.
2.
Term of Employment
2.1
The term
of Employee's employment pursuant to this Agreement (the "Term") shall begin
on
January 1, 2007, and shall end on December 31, 2009 subject to the provisions
of
Article 4 of this Agreement providing for earlier termination of Employee's
employment in certain circumstances. Employee may at any time during the
term,
terminate this agreement with, or without cause, providing 30 days notice
of
intent to terminate agreement is given.
3.
Compensation
3.1
As
compensation for all services to be rendered pursuant to this Agreement to
or at
the request of Company, Company agrees to pay Employee a salary at the rate
of
$240,000.00 per annum plus bonuses.
The
Salary set forth hereinabove shall be payable in accordance with the regular
payroll practices of the Company for executives. All payments hereunder shall
be
subject to the provisions of Article 4 hereof.
3.2
Company
shall pay or reimburse Employee for all necessary and reasonable expenses
incurred or paid by Employee in connection with the performance of services
under this Agreement upon presentation of expense statements or vouchers
or such
other supporting information as it from time to time requests evidencing
the
nature of such expense, and, if appropriate, the payment thereof by Employee,
and otherwise in accordance with Company procedures from time to time in
effect.
3.3
During
the Term, Employee shall be entitled to participate in any group insurance,
qualified pension, hospitalization, medical health and accident, disability,
or
similar plan or program of the Company now existing or hereafter established
to
the extent that he is eligible under the general provisions thereof.
Notwithstanding anything herein to the contrary, however, Company shall have
the
right to amend or terminate any such plans or programs.
3.4
The
Executive shall be entitled to Three (3) weeks paid vacation time annually,
to
be taken at times selected by him, with the prior concurrence of to whom
the
Executive is to report.
4.
Termination
4.1
Disability.
If
Employee shall be prevented from performing Employee's usual duties for a period
of 12 consecutive months, or for shorter periods aggregating more than 18 months
of the term of this agreement by reason of physical or mental disability, total
or partial, (herein referred to as "disability"), Company shall nevertheless
continue to pay full salary up to and including the last day of the twelfth
consecutive month of disability, or the day on which the shorter periods of
disability shall have equaled a total of eighteen months, but Company may at
any
time or times on or after such last day (but before the termination of such
disability), elect to terminate this Agreement upon written notice to employee,
effective on such 1st day, without further obligation or liability to Employee,
except for any compensation accrued hereunder but not yet paid. If Company
does
not so elect, this Agreement shall remain in full force and effect, except
that
Company shall not be obligated to pay any compensation set forth in Article
3
hereof to Employee during the remaining period of disability.
4.2
Death.
In the
event of Employee's death during the Term, this Agreement shall automatically
terminate, except that (a) Employee's estate shall be entitled to receive the
compensation provided for hereunder to the last day of the term of this
agreement; and (b) such termination shall not affect any amounts payable as
insurance or other death benefits under any plans or arrangements then in force
or effect with respect to Employee.
4.3
Specified Cause.
Company
may at any time during the Term, by notice, terminate the employment of Employee
for malfeasance, misfeasance, or nonfeasance in connection with the performance
of Employee's duties, the cause to be specified in the notice of termination.
Without limiting the generality of the foregoing, the following acts during
the
Term shall constitute grounds for termination of employment
hereunder:
4.3.1
Any
willful and intentional act having the effect of injuring the reputation,
business, business relationships of Company or its affiliates;
4.3.2
Conviction
of or entering a plea of nolo contendere to a charge of a felony or a
misdemeanor involving moral turpitude;
4.3.3
Material
breach of covenants contained in this Agreement; and
4.3.4
Repeated
or continuous failure, neglect, or refusal to perform Employee's duties
hereunder.
5.
Protection of Confidential Information
5.1
In view
of the fact that Employee's work as an employee of Company will bring Employee
into close contact with many confidential affairs of the Company and its
affiliates, including matters of a business nature, such as information about
costs, profits, markets, sales, and any other information not readily available
to the public, and plans for future developments, Employee agrees:
5.1.1
To keep
secret all confidential matters of Company and its affiliates and not to
disclose them to anyone outside of Company, either during or after Employee's
employment with Company, except with Company's written consent; and
5.1.2
To
deliver promptly to Company on termination of Employee's employment by Company,
or at any time Company may so request, all memoranda, notes, records, reports,
and other documents (and all copies thereof) relating to Company's and its
affiliates' businesses which Employee may then possess or have under the
Employee's control.
6.
Ownership of Results of Services:
6.1
Company
acknowledges that
Patent Application Number 11/413,673 “Method and Apparatus for Online Check
Processing”, is the property of Employee and is excluded from and is not subject
to any of the terms of this agreement. Company shall own, and Employee hereby
transfers and assigns to it, all rights of every kind and character throughout
the work, in perpetuity, in and to any material and/or ideas written, suggested,
or submitted by Employee hereunder and all other results and proceeds of
Employee's services hereunder, whether the same consists of literary, dramatic,
mechanical or any other form of works, themes, ideas, creations, products,
or
compositions. Employee agrees to execute and deliver to Company such assignments
or other instruments as Company may require from time to time to evidence
its
ownership of the results and proceeds of Employee's services.
7.
Notices:
7.1
All
notices, requests, consents and other communications required or permitted
to be
given hereunder shall be in writing and shall be deemed to have been duly
given
if delivered personally or sent by prepaid telegram, or mailed first-class,
postage prepaid, as follows:
If
to
Employee: Xxxxxx X Xxxxxx, 000 Xxxxx Xxxxxx, Xx Xxxxxx Xxxxx, XX 00000
If
to
Company: MyECheck, Inc., 0000 Xxxxxxx Xxxx, Xxxxx 0, Xx Xxxxxx Xxxxx, XX
00000
or
as
such other addresses as either party may specify by written notice to the
other
as provided in this Section 7.1.
8.
General
8.1
It is
acknowledged that the rights of Company under this Agreement are of a special,
unique, and intellectual character which gives them a peculiar value, and that
a
breach of any provision of this Agreement (particularly, but not limited to,
the
exclusivity provisions hereof and the provisions of Article 5 hereof), will
cause Company irreparable injury and damage which cannot be reasonably or
adequately compensated in damages in an action at law. Accordingly, without
limiting any right or remedy which Company may have in the premises, Employee
specifically agrees that Company shall be entitled to seek injunctive relief
to
enforce and protect its rights under this Agreement.
8.2
This
Agreement sets forth the entire agreement and understanding of the parties
hereto, and supersedes all prior agreements, arrangements, and understandings.
Nothing herein contained shall be construed so as to require the commission
of
any act contrary to law and wherever there is any conflict between any provision
of this Agreement and any present or future statute, law, ordinance or
regulation, the latter shall prevail, but in such event the provision of this
Agreement affected shall be curtailed and limited only to the extent necessary
to bring it within legal requirements. Without limiting the generality of the
foregoing, in the event that any compensation or other monies payable hereunder
shall be in excess of the amount permitted by any such statute, law, ordinance,
or regulation, payment of the maximum amount allowed thereby shall constitute
full compliance by Company with the payment requirements of this Agreement.
8.3
No
representation, promise, or inducement has been made by either party that is
not
embodied in this Agreement, and neither party shall be bound by or liable for
any alleged representation, promise, or inducement not so set forth. The section
headings contained herein are for reference purposes only and shall not in
any
way affect the meaning or interpretation of this Agreement.
8.4
The
provisions of this Agreement shall inure to the benefit of the parties hereto,
their heirs, legal representatives, successors, and assigns. This Agreement,
and
Employee's rights and obligations hereunder, may not be assigned by Employee.
Company may assign its rights, together with its obligations, hereunder in
connection with any sale, transfer or other disposition of all or substantially
all of its business and assets. Company may also assign this Agreement to any
affiliate of Company; provided, however, that no such assignment shall (unless
Employee shall so agree in writing) release Company of liability directly to
Employee for the due performance of all of the terms, covenants, and conditions
of this Agreement to be complied with and performed by Company. The term
"affiliate", as used in this agreement, shall mean any corporation, firm,
partnership, or other entity controlling, controlled by or under common control
with Company. The term "control" (including "controlling", "controlled by",
and
"under common control with"), as used in the preceding sentence, shall be deemed
to mean the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such corporation, firm,
partnership, or other entity, whether through ownership of voting securities
or
by contract or otherwise.
8.5
This
Agreement may be amended, modified, superseded, cancelled, renewed or extended,
and the terms or covenants hereof may be waived, only by a written instrument
executed by both of the parties hereto, or in the case of a waiver, by the
party
waiving compliance. The failure of either party at any time or times to require
performance of any provisions hereof shall in no manner affect the right
at a
later time to enforce the same. No waiver by either party of the breach of
any
term or covenant contained in this Agreement, whether by conduct or otherwise,
in any one or more instances, shall be deemed to be, or construed as, a further
or continuing waiver of any such breach, or a waiver of the breach of any
other
term or covenant contained in this Agreement.
8.6
This
Agreement shall be governed by and construed according to the laws of the
State
of California applicable to agreements to be wholly performed
therein.
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the
date first above written.
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MyECheck,
Inc
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Xxxxxx
X Xxxxxx
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