EXECUTIVE EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), dated as of this 18th day
of October, 2001, is between United Capturdyne Technologies, Inc. (the
"Company") and Max Xxxxxxx Xxxxxx, XX ("Korbin").
WHEREAS, Korbin has been employed as an executive of the Company and
was also a principal shareholder of the Company; and
WHEREAS, The Company has, as of the Effective Date, merged with a
wholly owned subsidiary of VoiceFlash Networks, Inc. The Company is the
surviving corporation as of the Effective Time and has retained its name; and
WHEREAS, the Company desires to assure continuance of Korbin's service
in connection with such business; and
WHEREAS, Korbin agrees to be employed and the Company agrees to employ
Korbin as the Chief Executive Officer of the Company as of the date hereof.
WHEREAS, the parties agree that a covenant not to compete is essential
to the growth and stability of the business of the Company.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and covenants set forth herein, the Company and Korbin agree as
follows:
1. EMPLOYMENT.
1.1 Employment and Term. The Company hereby employs Korbin,
and Korbin shall serve the Company, upon the terms and conditions herein set
forth, for a term commencing on the date of this Agreement and expiring on the
last day of the 36th calendar month following the date first written above (the
"Term of Employment"), unless earlier terminated pursuant to Section 4 below.
1.2 Position and Duties. Korbin is engaged as the Chief
Executive Officer and to exercise and faithfully perform to the best of his
ability on behalf of the Company the powers and duties customarily performed as
CEO. The duties of the CEO shall generally be those set forth in the bylaws of
the Company, subject to modification and further delegation as determined from
time to time by the Board of Directors of the Company. Korbin shall report
directly to the Board of Directors of the Company.
1.3 Other Activities. Nothing in this Agreement shall be
construed to prevent Korbin from devoting a portion of his time to community or
charitable activities, from investing his assets in any form or manner he deems
appropriate or from serving as a director of any corporation, provided such
activities do not unreasonably interfere with the duties under this Agreement
and do not violate the provisions of Section 3.1 or 3.2.
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2. COMPENSATION.
2.1 Base Salary. Beginning on January 1, 2002, the Company
will pay Korbin a salary of $125,000 per year, on the same basis as all Company
Employee's.
2.2 Benefits. Company shall provide such benefits as are
provided for other Company Employees. Those benefits shall include medical and
dental insurance for Korbin and immediate family, cellular telephone charges and
three (3) weeks paid annual vacation. The vacation amount shall be accrued if
not used.
2.3 Withholding. Korbin agrees that the Company shall deduct
and withhold from his salary and from all other amounts paid to Korbin, all
state and federal tax and other withholdings required by law.
2.4 Expenses. The Company shall reimburse Korbin for
reasonable expenses incurred on behalf of the Company in connection with his
performance of his obligations hereunder during the term of this Agreement.
2.5 Termination. Without in any way limiting the other
provisions of this Agreement, upon termination of Korbin's employment, whether
by expiration of the term of this Agreement or as provided for in Section 4,
Korbin shall cease to receive or have any right to receive salary or any other
compensation or benefits provided for above or otherwise, except that amount
earned but unpaid during Korbin's employment with the Company.
2.6 Bonus. At any time, and from time to time until December
31, 2001, Korbin may take a bonus in the amount of $250,000 as consideration for
entering into this Agreement.
3. NONCOMPETITION AND DISCLOSURE OF INFORMATION.
3.1 Non-competition. Korbin acknowledges and recognizes the
highly competitive nature of the Company's business and the goodwill, continued
patronage, and specifically the names and addresses of the Company's Clients (as
hereinafter defined) constitute a substantial asset of the Company having been
acquired through considerable time, money and effort. Accordingly, in
consideration of the execution of this Agreement, in the event Korbin's
employment is terminated for Cause or by reason of Disability, Korbin agrees
that during the Term of Employment and for a period of two years after the
termination of Korbin's employment with the Company (as further limited
hereinafter) and [within the area] in which Company engages in business [at the
time] of termination, Korbin will not, directly or indirectly, be employed by,
own, manage, operate, act as an agent for, join, control or participate in the
ownership, management, operation or control of or be connected with directly or
indirectly, in any manner, any business engaged in the processing of electronic
transactions and the development of software related thereto ("Competitive
Business"). Korbin shall be deemed to be connected with such business if he is
the sole proprietor of such business, such business is carried on by a
partnership in which he is a general or limited partner agent or Korbin, or a
corporation or association of which he is a shareholder, officer, director,
Korbin, member, consultant or agent; provided, that nothing herein shall prevent
the purchase or ownership by Korbin of shares of less than one percent (1%) in a
publicly held corporation. The above provisions restricting stock ownership do
not pertain to the ownership of the stock of the Company or related companies.
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3.2 Disclosure of Information. Korbin recognizes and
acknowledges that the confidential, proprietary information of the Company, and
other intellectual property of the Company including contacts made within the
scope of Korbin's duties hereunder and such trade secrets or information as may
exist from time to time, including without limitation technical information
regarding the Company's business, information as to the identity of Korbins,
customers and potential or existing suppliers of the Company or its affiliates,
information as to the marketing or other plans of the Company and other similar
items, are valuable, special and unique assets of the Company's business, access
to and knowledge of which are essential to the performance of the duties of
Korbin hereunder. Such property and information shall remain the exclusive
property of the Company at all times during and subsequent to the Term of
Employment. Korbin will not, during or after the Term of Employment, in whole or
in part, remove the Company records either in original, duplicated or copied
form, from the premises of the Company, (unless Korbin is required to do so to
perform his employment duties hereunder) nor disclose such secrets or
confidential or proprietary information to any person, firm, corporation,
association or other entity for any reason or purpose whatsoever, nor shall
Korbin make use of any such property for his own purposes or for the benefit of
any person, firm, corporation or other entity (except the Company or its
affiliates) under any circumstances, during or after the Term of Employment. For
this Section 3.2, the Company shall include any and all of its affiliates.
Confidential Information of the Company shall not include (a) information which
has been made public, other than through breach of this Agreement; (b)
information which Korbin possessed and/or had available to him on a
non-confidential basis from a third person and/or entity before Korbin obtained
the information from the Company and/or any client of the Company; (c)
information which Korbin later obtains from a third party and/or entity without
any confidentiality obligation; or (d) information which Korbin is legally
required to disclose.
3.3 Covenants as Essential Elements of this Agreement. It is
understood by and between the parties hereto that the foregoing covenants
contained in Sections 3.1 and 3.2 are essential elements of this Agreement, and
that but for the agreement by Korbin to comply with such covenants, the Company
would not have agreed to enter into this Agreement. Such covenants by Korbin
shall be construed to be agreements independent of any other provisions of this
Agreement. The existence of any other claim or cause of action, whether
predicated on any other provision in this Agreement, or otherwise, as a result
of the relationship between the parties shall not constitute a defense to the
enforcement of such covenants against Korbin.
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3.4 Remedies.
(i) Korbin acknowledges and agrees that the Company's remedy
at law for the breach or threatened breach of any of the provisions of Section
3.1 or 3.2 herein would be inadequate and the breach shall be per se deemed as
causing irreparable harm to the Company or its subsidiaries. In recognition of
this fact in the event of a breach by Korbin of any of the provisions of Section
3.1 or 3.2, Korbin agrees that, in addition to any remedy at law available to
the Company, including monetary damages, all rights of Korbin to payment under
this Agreement and all amounts thereafter due to Korbin from the Company under
the Agreement may be terminated and the Company, without posting any bond, shall
be entitled to seek equitable relief in the form of specific performance,
temporary restraining order, temporary or permanent injunction or any other
equitable remedy which may then be available to the Company. This provision does
not affect Korbin's right to payment of salary, bonus or other monies due and
owing to Korbin which have accrued but not been paid to Korbin prior to the
breach or threatened breach.
(ii) The period of time applicable to any covenant in Section
3 will be extended by the duration of the violation by Korbin of such covenant.
3.5 Covenants to Survive this Agreement. The covenants of
Korbin contained in Sections 3.1 and 3.2 hereof shall each be construed as an
agreement independent of any other provision in this Agreement and shall survive
the expiration or termination of this Agreement or any part thereof without
regard to the reason therefor. The existence of any claim or cause of action of
Korbin against the Company, whether predicated on this Agreement or otherwise,
shall not constitute a defense to the enforcement by the Company of either
covenant. Both parties hereby expressly agree and contract that it is not the
intention of either party to violate any public policy, statutory or common law,
and that if any sentence, paragraph, clause, or combination of the same of
Sections 3.1 and 3.2 is in violation of the law of any state where applicable,
such sentence, paragraph, clause, or combination of the same shall be void in
the jurisdictions where it is unlawful, and the remainder of such paragraph and
this Agreement shall remain binding on the parties hereto. It is the intention
of both parties to make the covenants of Sections 3.1 and 3.2 binding only to
the extent that it may be lawfully done under existing applicable laws. In the
event that any part of any covenant of Sections 3.1 and 3.2 is determined by a
court of law to be overly broad thereby making the covenant unenforceable, the
parties hereto agree, and it is their desire, that such court shall substitute a
reasonable, judicially enforceable limitation in place of the offensive part of
the covenant and as so modified the covenant shall be as fully enforceable as
set forth herein by the parties themselves in the modified form.
3.6 Consideration. At any time, and from time to time until
December 31, 2001, Korbin may take an amount of $250,000 as consideration for
entering into the Non-Competition covenants of this Agreement.
3.7 Personal Guaranty. The Company will allow Korbin to
maintain a separate and independent corporate account for the maintenance of
reserves specifically and limited to e-fund transactions unless and until the
Company is able to eliminate Korbin's personal guaranty with E-funds. The
Company may not terminate Korbin for Cause as a result of Korbin's refusal to
return such reserves to the Company unless and until the Company is able to
eliminate Korbin's personal guaranty with E-funds.
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4. EARLY TERMINATION OF AGREEMENT.
4.1 Early Termination of Agreement. This Agreement shall
terminate earlier than expiration of the Term of Employment ("Early
Termination") upon the occurrence of any of the following events:
(a) Immediately upon notice from the Company to Korbin for
cause. The term "cause" shall refer and be limited to: (i) any act of
embezzlement or conversion of assets of the Company; (ii) Korbin's breach of any
obligations under this Agreement; (iii) an act of malfeasance or gross
negligence by Korbin; (iv) habitual or repeated material non-performance of
duties.
(b) Upon notice from the Company to Korbin not for Cause. The
Company may terminate Korbin's employment for whatever reason it deems
appropriate, provided, however, that unless such termination is based on Cause,
Korbin will be entitled to receive the Base Salary that Korbin would have been
entitled to receive through and at the end of such Term of this Agreement.
(c) Upon mutual agreement of the Company and Korbin.
4.2 By Death or Disability. In the event of Korbin's death,
this Agreement shall terminate on the date of his death and any salary or
expenses owed up to the date of death shall be paid to his beneficiary. In the
event of his Disability, this Agreement shall terminate as of such date of
Disability. "Disability," for the purposes of this Agreement, shall be deemed to
have occurred in the event (A) Korbin is unable by reason of sickness or
accident, to perform Korbin's duties under this Agreement for an aggregate of
three (3) months in any one (1) year period or (B) Korbin has a guardian of the
person or estate appointed by a court of competent jurisdiction. Termination due
to Disability shall be deemed to have occurred upon the first day of the month
following the determination of disability as defined in the preceding sentence.
4.3 Obligations Surviving Early Termination. Notwithstanding
the Early Termination of this Agreement as contemplated in Section 4.1 above or
expiration of the term of this Agreement, the provisions of this Agreement
relating to Korbin's covenant not to compete, and Korbin's obligation to
maintain and protect trade secrets and confidential, proprietary rights and
information of the Company shall maintain in force and effect pursuant to the
terms of this Agreement.
5. GENERAL PROVISIONS.
5.1 (a) Binding Agreement. This Agreement shall be
binding upon and shall inure to the benefit of the heirs, legal representatives,
successors and assigns, as applicable, of the respective parties hereto, and any
entities resulting from the reorganization, consolidation or merger of any party
hereto.
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(b) Headings. The headings used in this Agreement are
inserted for reference purposes only and shall not be deemed to limit or affect
in any way the meaning or interpretation of any of the terms or provisions of
this Agreement.
(c) Counterparts. This Agreement may be signed upon
any number of counterparts with the same effect as if the signature to any
counterpart were upon the same instrument.
(d) Severability. The provisions of this Agreement
are severable, and should any provision hereof be found to be void, voidable or
unenforceable, such void, voidable or unenforceable provision shall not affect
any other portion or provision of this Agreement. Without limiting the
generality of the above, should any provision be unenforceable as a result of a
time period or geographic area, the time period and/or geographic area shall be
reduced to the longest period and/or largest area which would render the
provision enforceable.
(e) Waiver. Any waiver by any party hereto of any
breach of any kind or character whatsoever by any other party, whether such
waiver be direct or implied, shall not be construed as a continuing waiver or
consent to any subsequent breach of this Agreement on the part of the other
party.
(f) Modification. This Agreement may not be modified
except by an instrument in writing signed by the parties hereto.
(g) Governing Law. This Agreement shall be
interpreted, construed and enforced according to the laws of the state of
Florida. Venue shall lie in Broward County, Florida.
(h) Attorneys' Fees. In the event any action or
proceeding is brought by either party against the other under this Agreement,
the prevailing party shall be entitled to recover attorneys' fees and costs in
such amount as the court may adjudge reasonable.
(i) Notice. Any notice, consent, request, objection
or communication to be given by either party to this Agreement shall be in
writing and shall be either delivered personally or by Airborne, Federal Express
or other commercial overnight delivery service addressed as follows:
Company: VFNX, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attn: CEO
Korbin: Max Xxxxxxx Xxxxxx, XX
(j) Assignment. Neither the Company nor Korbin may
assign their rights and obligations pursuant to this Agreement to a third party
without the written consent of each other.
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[SIGNATURES TO APPEAR ON THE FOLLOWING PAGE(S)]
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KORBIN ACKNOWLEDGES THAT HE HAS BEEN ADVISED TO SEEK THE ADVICE OFINDEPENDENT
COUNSEL AND THAT HE HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT
COUNSEL, READ ALL OF THE TERMS OF THIS AGREEMENT, UNDERSTANDS THE AGREEMENT, AND
AGREES TO ABIDE BY ITS TERMS AND CONDITIONS.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date first set forth above.
KORBIN:
------------------------------------
Max Xxxxxxx Xxxxxx, XX
United Capturdyne Technologies, Inc.
By:
--------------------------------
Xxxxxxxx Xxxxx, President
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