EMPLOYMENT AGREEMENT
EXHIBIT
10.4
--------------------------
THIS
AGREEMENT entered into and effective September 01, 2007, in Broward County,
Florida, by and between Secured Financial Network, Inc., (SFNL) a Nevada
corporation with corporate offices at 000 XX Xxxxx Xxxxxx, Xxxxx 0000, Xx.
Xxxxxxxxxx, XX 00000. (hereinafter referred to as "Employer") and, Xxxxx
Xxxxx
an individual, residing at, 0000 Xxxx Xxxxx Xx., Xxxxxxxxx Xxxxx, Xx 00000
(hereinafter referred to as "Employee"); (hereinafter sometimes collectively
referred to as “Parties” or singularly as “party”).
WHEREAS,
SFNL is a financial services company specializing in payment
processing.
WHEREAS,
incident to the performance of Employee's duties for Employer, Employee will
occupy a position of trust and confidence and will be given access to
proprietary and confidential and privileged information regarding the business,
operations, assets and trade secrets of Employer, including but not limited
to,
access to vendor identity, pricing, sales techniques, customer identification,
contact with customers and potential customers and the like;
WHEREAS,
Employee understands and acknowledges that Employer has expended and will
continue to expend substantial amounts of time and money to develop Employer’s
unique manner of offering these products and services, as well as advertising,
distribution and other relationships in furtherance of its unique marketing
approach, which techniques and information Employee agrees constitute trade
secrets, the sole property of Employer;
WHEREAS,
Employee seeks the opportunity to be employed by Employer, and Employer is
willing to employ Employee, on the terms, covenants, and conditions set forth
in
this agreement;
WHEREAS,
Employee acknowledges that the business which employer is engaged is and/or
may
be subject to extensive governmental or other rules or regulations;
and
NOW
THEREFORE, in consideration of the mutual covenants and promises of the parties,
and for other good and valuable consideration, the sufficiency of which is
hereby acknowledged, Employer and Employee covenant and agree as
follows:
| EMPLOYER:___ EMPLOYEE:___ |
PAGE
1 OF 10
|
1
Xxxxx
Xxxxx - Employment Agreement - continued
NATURE
OF EMPLOYMENT
---------------------
1. Employer
does hire and employ Employee as the Vice President of Business Development
of
Employer and Employee does accept and agree to such hiring and employment.
Subject to the supervision and pursuant to the orders, advice, and directions
of
Employer, Employee shall act subject to the direction and control of the
Board
of Directors, and shall perform such other duties as are customarily performed
by one holding such position in other similar businesses or enterprises as
that
engaged in by Employer, and shall also additionally render such other and
unrelated services and duties as may be assigned to Employee from time to
time
by Employer.
2. Employee
agrees to follow the terms, rules and regulations established for publicly
traded companies or other federal, state and governmental authorities
establishing the same or similar guidelines unless otherwise
notified.
MANNER
OF PERFORMANCE OF EMPLOYEE'S DUTIES
------------------------------------------
3. Employee
agrees to perform, at all times faithfully, industriously, and to the best
of
his ability, experience, and talent, all of the duties that may be required
of
and from him pursuant to the express and implicit terms of this Agreement,
to
the satisfaction of Employer. Such duties shall be rendered at Corporate
Offices
of the Company and at such other place or places as Employer shall in good
faith
require or as the interests, needs, business, and opportunities of Employer
shall require or make advisable.
DURATION
OF EMPLOYMENT
----------------------
4. The
term of this Agreement shall be for a period of two years, commencing on
September 1, 2007, subject, however, to prior termination as provided
below. The Agreement will automatically renew on the anniversary date
for an additional 2 years unless notification is made 60 days prior to
expiration.
PAYMENT
AND REIMBURSEMENT
-------------------------
5. Employer
shall pay Employee and Employee agrees to accept from Employer, in full payment
for Employee's services under this Agreement, compensation as
follows:
|
A.
|
Base
annual gross salary of $72,000 per year payable in bi-weekly on
the 15th
and 30th
day of every month during the term hereof, less applicable federal
and
state deductions.
|
|
B.
|
As
additional consideration to enter into this agreement, the Employer
agrees
to issue a stock bonus upon the execution of this agreement in
the amount
of 500,000 Rule 144 restricted shares of the Company at
signing.
|
|
C.
|
A
$300 per month car allowance shall be paid to the
Employee.
|
|
D.
|
Reimbursement
for all pre-approved expenses for entertainment, travel, and marketing
cell phone and health insurance until a company plan is
provided.
|
|
E.
|
Commission
Schedule:
|
10%
of
Gross Profit for the month, derived solely from direct relationships and
or
their affiliates or relationships and efforts of Employee, paid for 30 days
after reconciliation of the prior months Gross Profit for specific
accounts.
In
addition:
1%
of
Gross Profit of Company up to $2,000,000
2%
of
Gross Profit of Company from $2,000,001 to $5,000,000
3%
of
Gross Profit of Company over $5,000,000
Above
commissions are paid on the 30th day of
the month
after the closing of the quarter subject to year-end audit.
Gross
Profit is defined as Gross Revenue less direct related costs.
| EMPLOYER:___ EMPLOYEE:___ |
PAGE 2
OF 10
|
2
Xxxxx Xxxxx - Employment Agreement -
continued
6. Employer
shall provide medical, dental and ophthalmic benefits to Employee and family
pursuant to the same plans or programs presently and/or offered to its employees
subject to the general eligibility and participation provisions set forth
in
such plans or programs, as offered by the employer from time to
time.
7. Employee
shall be distributed stock and given the option to purchase stock as herein
provided.
Stock
Option Plan To Be Completed
8. Employee
shall be entitled to two (2) weeks paid vacation during each twelve-month
period
of the term hereof, to be taken at such times as Employer and Employee shall
mutually determine and provided that no vacation time shall materially interfere
with the duties which Employee is required to render hereunder. Vacation
time
“may” be carried over from one twelve month period to a succeeding twelve-month
period.
10. Employee
shall be entitled to 3 months severance pay for the first year of
service and one additional month for each year thereafter up to 6 months
maximum, medical insurance benefits and car allowance if Employee's employment
is terminated during the term hereof except (a) during the probationary period
described below or (b) if Employee is terminated for cause.
11. Notwithstanding
anything to be contrary in this Agreement, Employee shall be on probation
until
December 1, 2007. Employer may terminate Employee's employment at any time
during the probationary period, in which event this Agreement shall be deemed
terminated and Employer shall have no further liability hereunder.
TERMINATION
-----------
12. Notwithstanding
anything in this Agreement to the contrary, Employer has the option to terminate
this Agreement in the event that during its term Employee shall become
permanently disabled as the term permanently
disabled is defined below (15) in which event Employer shall have no further
liability hereunder except as follows
13. Such
option shall be exercised by Employer giving notice to Employee by registered
mail, addressed to him in care of Employer at 000 XX Xxxxx Xxxxxx, Xxxxx
0000,
Xx. Xxxxxxxxxx, XX 00000, or at such other address as Employee shall designate
in writing, of its intention to terminate this Agreement on the last day
of the
month during which such notice is mailed, and on the giving of such notice
this
Agreement and the term of this Agreement come to an end on the last day of
the
month in which the notice is mailed, with the same force and effect as if
that
day were originally set forth as the termination date.
14. For
the purposes of this Agreement, the term "any year of the term of this
Agreement" is defined to mean any period of 12 calendar months commencing
on the
1st day of September, 2007 and terminating on the 31st day of August, of
the
following year during the term of this Agreement.
| EMPLOYER:___ EMPLOYEE:___ |
PAGE 3
OF 10
|
3
Xxxxx
Xxxxx - Employment Agreement - continued
15. For
the purposes of this Agreement, Employee shall be deemed to have become
permanently disabled if, during any year of the term of this Agreement, because
of ill health, physical or mental disability, or for other causes beyond
his
control, he shall have been continuously unable or unwilling or have failed
to
perform his duties under this contract for 30 consecutive days, or if, during
any year of the term of this Agreement, he shall have been unable or unwilling
or have failed to perform his duties for a total period of 15 days, either
consecutive or not.
16. Death:
In the event of Employee's death during the term hereof, this Agreement and
all
of Employee's rights hereunder shall be deemed terminated except that Employer
shall pay to Employee's estate any unpaid base salary and car allowance through
the date of Employee's death along with two months severance pay, an amount
equal to compensation for unused vacation days that have accumulated during
the
twelve month period in which the termination occurs, and the right to exercise
stock options on behalf of the deceased as pertains to Section 7
herein.
17. Notwithstanding
anything in this Agreement to the contrary, in the event that Employer shall
discontinue operating its business then this Agreement will terminate as
of the
last day of the month in which Employer ceases operations with the same force
and effect as if that day were originally set forth as the termination date
of
this Agreement and neither party shall have any further liability
hereunder
18. Employer
shall at all times have the right, upon written notice to Employee to terminate
Employee's employment hereunder, for cause. For purposes of this Agreement,
the
term "cause" shall mean:
|
A.
|
an
action or omission of the Employee which constitutes a willful
and
material breach of this Agreement, which is not cured within ten
(10) days
after receipt by the Employee of written notice of same or, if such
breach is not capable of cure
within such ten (10) day period, if the Employee has not commenced
diligently to cure such breach in the shortest time possible;
|
|
B.
|
fraud,
embezzlement, misappropriation of funds or breach of trust
in connection with his services
hereunder;
|
|
C.
|
conviction
of any crime, which involves dishonesty or a breach of
trust;
|
|
D.
|
negligence
in connection with the performance of the Employee's
duties hereunder; or
|
|
|
E.
|
the
material and willful or knowing failure or refusal (other than
as a result of a disability) by Employee to perform his duties
hereunder.
Upon and termination pursuant to this Section, Employer
shall have no further liability
hereunder.
|
| EMPLOYER:___ EMPLOYEE:___ |
PAGE 4
OF 10
|
4
Xxxxx Xxxxx - Employment Agreement - continued
19. In
the event Employee resigns from his employment during the term hereof, Employer
shall have no further liability hereunder.
DEVOTION
BY EMPLOYEE OF FULL TIME TO BUSINESS
---------------------------------------------
20. Employee
shall devote all his time, attention, knowledge, and skill solely and
exclusively to the business and interest of Employer, and Employer shall
be
entitled to all of the benefits, emoluments, profits, or other issues arising
from or incident to any and all work, services, and advice of Employee, and
Employee expressly agrees that during the term of this Agreement he will
not be
interested, directly or indirectly, in any form, fashion, or manner, as partner,
officer, director, stockholder, advisor, employee, or in any other form or
capacity, in any other business similar to Employer’s business or any allied
trade.
RESTRICTIVE
COVENANTS
---------------------
21. At
all times while Employee is employed by Employer, and for a two year period
after the termination of Employee's employment with Employer for any reason,
the
Employee shall not, directly or indirectly, engage in or have any interest
in
any sole proprietorship, partnership, corporation or business or any other
person or entity (whether as an employee, officer, director, partner, agent,
security holder, creditor, consultant or otherwise) that directly or indirectly
(or through any affiliated entity) engages in competition with Employer (or
any
entity which controls, is under common control with or is controlled by
Employer).
22. Employee
shall not at any time divulge, communicate, use to the detriment of Employer
or
for the benefit of any other person or persons, or misuse in any way, any
confidential information (as hereinafter defined) pertaining to the business
of
Employer.
23. Any
confidential information or data now or hereafter acquired by Employee with
respect to the business of Employer (which shall include, but not be limited
to,
information concerning Employer financial condition, prospects, technology,
customers, suppliers, sources of leads and methods of doing business) shall
be
deemed a valuable, special and unique asset of Employee that is received
by
employee in confidence and as a fiduciary, and Employee shall remain a fiduciary
to Employer with respect to all of such information.
24. For
purposes of this Agreement, "confidential information" means information
disclosed to Employee or known by Employee as a consequence of or through
his
employment by Employer (including information conceived, originated, discovered
or developed by Employer) prior to or after the date hereof, and not generally
known, about Employer or its business. Notwithstanding the foregoing, nothing
herein shall be deemed to restrict Employee from disclosing confidential
information to the extent required by law.
| EMPLOYER:___ EMPLOYEE:___ |
PAGE 5
OF 10
|
5
Xxxxx
Xxxxx - Employment Agreement - continued
25. All
copyrights, patents, trade secrets, or other intellectual property rights
associated with any ideas, concepts, techniques, inventions, processes, or
works
of authorship developed or created by Employee during the course of performing
work for Employer or its clients (collectively, the "work product") shall
belong
exclusively to Employer and shall, to the extent possible, be considered
a work
made by Employee for hire for Employer with the meaning of Title 17 of the
United States Code. To the extent the work product may not be considered
work
made by Employee for hire for Employer, Employee agrees to assign, and
automatically assign at the time of creation of the work product, without
any
requirement of further consideration, any right, title, or interest that
Employee may have in such work product. Upon the request of Employer, Employee
shall take such further actions, including execution and delivery of instruments
of conveyance, as may be appropriate to give full and proper effect to such
assignment.
26. All
books, records, and accounts relating in any manner to the customers or clients
of Employer, whether prepared by Employee or otherwise coming into Employee's
possession, shall be the exclusive property of Employer and shall be returned
immediately to Employer on termination of Employee's employment hereunder
or on
Employer’s request at any time.
27. Solely
for purposes of this Section, the term "Employer" also shall include any
existing or future subsidiaries of Employer that are operating during the
time
periods described herein and any other entities that directly or indirectly,
through one or more intermediaries, control, are controlled by or are under
common control with Employer during the periods described herein.
28. Employee
acknowledges and confirms that (a) the restrictive covenants contained in
this
Section are reasonably necessary to protect the legitimate business interests
of
Employer, and (b) the restrictions contained in this Section (including without
limitation the length of the term of the provisions of this Section) are
not
overbroad, overlong, or unfair and are not the result of overreaching, duress
or
coercion of any kind. Employee acknowledges and confirms that his special
knowledge of the business of Employee is such as would cause Employer serious
injury or loss if he were to use such ability and knowledge to the benefit
of a
competitor or were to compete with the Employer in violation of the terms
of
this Employee further acknowledges that the restrictions contained in this
Section are intended to be, and shall be, for the benefit of and shall be
enforceable by, Employers successors and assigns.
29. In
the event that a court of competent jurisdiction shall determine that any
provision of this Section is invalid or more restrictive as permitted under
the
governing law of such jurisdiction, then only as to enforcement of this Section
within the jurisdiction of such court, such provision shall be interpreted
and
enforced as if it provided for the maximum restriction permitted under such
governing law.
| EMPLOYER:___ EMPLOYEE:___ |
PAGE 6
OF 10
|
6
Xxxxx
Xxxxx - Employment Agreement - continued
30. If
Employee shall be in violation of any provision of this Section, then each
time
limitation set forth in this Section shall be extended for a period of time
equal to the period of time during which such violation or violations occur.
If
Employer seeks injunctive relief from such violation in any court, then the
covenants set forth in this Section shall be extended for a period of time
equal
to the pendency of such proceeding including all appeals by
Employee.
31. It
is recognized and hereby acknowledged by the parties hereto that a breach
by
Employee of any of the covenants contained in Section of this Agreement will
cause irreparable harm and damage to Employer, the monetary amount of which
may
be virtually impossible to ascertain. As a result, Employee recognizes and
hereby acknowledges that Employer shall be entitled to an injunction from
any
court of competent jurisdiction enjoining and restraining any violation of
any
or all of the covenants contained in Section of this Agreement by Employee
or
any of his affiliates, associates, partners or agents, either directly or
indirectly, and that such right to injunction shall be cumulative and in
addition to whatever other remedies Employer may possess.
ARBITRATION
-----------
32. Any
dispute or controversy arising under or in connection with this Agreement
shall
be settled exclusively by arbitration in Broward County, Fl in accordance
with
the Rules of the American Arbitration Association then in effect (except
to the
extent that the procedures outlined below differ from such rules). Within
thirty
(30) days after written notice by either party has been given that a dispute
exists and that arbitration is required, each party must select an arbitrator
and those two arbitrators shall promptly, but in no event later than thirty
(30)
days after their selection, select a third arbitrator. The parties agree
to act
as expeditiously as possible to select arbitrators and conclude the dispute.
The
selected arbitrators must render their decision in writing. The cost and
expenses of the arbitration and of enforcement of any award in any court
shall
be borne by the losing party. If advances are required, each party will advance
one-half of the estimated fees and expenses of the arbitrators. Judgment
may be
entered
on
the arbitrators= award in any court having jurisdiction. Although arbitration
is
contemplated to resolve disputes hereunder, either party may proceed to court
to
obtain an injunction to protect its rights hereunder, the parties agreeing
that
either could suffer irreparable harm by reason of any breach of this Agreement.
Pursuit of an injunction shall not impair arbitration of all remaining
issues.
ASSIGNMENT
----------
33. Employee
shall not have the right to assign or delegate his rights or obligations
hereunder, or any portion thereof, to any other person.
| EMPLOYER:___ EMPLOYEE:___ |
PAGE 7
OF 10
|
7
Xxxxx Xxxxx - Employment Agreement -
continued
GOVERNING
LAW
-------------
34. This
Agreement shall be governed by and construed in accordance with the laws
of the
State of Florida without regard to its conflict of laws principles to the
extent
that such principles would require the application of laws other than the
laws
of the State of Florida. Venue for any action brought hereunder shall be
in
Broward County, Florida and the parties hereto waive any claim that such
forum
is inconvenient.
ENTIRE
AGREEMENT
----------------
35. This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and, upon its effectiveness, shall
supersede all prior agreements, understandings and arrangements, both oral
and
written, between Employee and Employer (or any of its affiliates) with respect
to such subject matter. This Agreement may not be modified in any way unless
by
a written instrument signed by both parties.
NOTICES
-------
36. All
notices required or permitted to be given hereunder shall be in writing and
shall be personally delivered by courier, sent by registered or certified
mail,
return receipt requested or sent by confirmed facsimile transmission addressed
as set forth herein. Notices personally delivered, sent by facsimile or sent
by
overnight courier shall be deemed given on the date of delivery and notices
mailed in accordance with the foregoing shall be deemed given upon the earlier
of receipt by the addressee, as evidenced by the return receipt thereof,
or
three (3) days after deposit in the U.S. mail. Notice shall be
sent (i) if to Employer, addressed to 000 XX Xxxxx Xxxxxx, Xxxxx
0000, Xx. Xxxxxxxxxx, XX 00000 and (ii) if to Employee, to his address as
reflected on the payroll records of the Employer, or to such other address
as
either party hereto may from time to time give notice of to the
other.
BENEFITS;
BINDING EFFECT
------------------------
37. This
Agreement shall be for the benefit of and binding upon the parties hereto
and
their respective heirs, personal representatives, legal representatives,
successors and, where applicable, assigns, including, without limitation,
any
successor to Employer, whether by merger, consolidation, sale of stock, sale
of
assets or otherwise.
| EMPLOYER:___ EMPLOYEE:___ |
PAGE 8
OF 10
|
8
Xxxxx
Xxxxx - Employment Agreement - continued
SEVERABILITY
------------
38. The
invalidity of any one or more of the words, phrases, sentences, clauses or
sections contained in this Agreement shall not affect the enforceability
of the
remaining portions of this Agreement or any part thereof, all of which are
inserted conditionally on there being valid in law, and, in the event that
any
one or more of the words, phrases, sentences, clauses or sections contained
in
this Agreement shall be declared invalid, this Agreement shall be construed
as
if such invalid work or words, phrase or phrases, sentence or sentences,
clause
or clauses, or section or sections had not been inserted. If such invalidity
is
caused by length of time or size of area, or both, the otherwise invalid
provision will be considered to be reduced to a period or area, which would
cure
such invalidity.
WAIVERS
-------
39. The
waiver by either party hereto of a breach or violation of any term or provision
of this Agreement shall not operate nor be construed as a waiver of any
subsequent breach or violation.
DAMAGES
-------
40. Nothing
contained herein shall be construed to prevent Employer or Employee from
seeking
and recovering from the other damages sustained by either or both of them
as a
result of its or his breach of any term or provision of this Agreement. In
the
event that either party hereto files for arbitration or brings suit for the
collection of any damages resulting from, or to enjoin any action constituting,
a breach of any of the terms or provisions of this Agreement, then the party
found to be at fault shall pay all reasonable court or arbitration costs
and
attorneys= fees of the other including legal fees and costs incurred prior
to
the filing of any action or arbitration.
NO
CONSTRUCTION AGAINST DRAFTER
-------------------------------
41. This
Employment Agreement shall be construed without regard to any presumption
or
other rule requiring construction against the party causing the drafting
hereof.
NO
THIRD PARTY BENEFICIARY
--------------------------
42. Nothing
expressed or implied in this Agreement is intended, or shall be construed,
to
confer upon or give any person other than Employer, the parties hereto and
their
respective heirs, personal representatives, legal representatives, successors
and assigns, any rights or remedies under or by reason of this
Agreement.
| EMPLOYER:___ EMPLOYEE:___ |
PAGE 9
OF 10
|
9
Xxxxx Xxxxx - Employment Agreement - continued
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first above written.
By:
/s/
Xxxxxxx X. Xxxxxxx
---------------------------------
Xxxxxxx
X. Xxxxxxx - Employer
President
By:
/s/
Xxxxx Xxxxx
---------------------------------
Xxxxx
Xxxxx - Employee
| EMPLOYER:___ EMPLOYEE:___ |
PAGE 10
OF 10
|
10
