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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.
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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.
2. COMPENSATION.
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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. NON-COMPETITION AND DISCLOSURE OF INFORMATION.
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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.
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.
3.4 Remedies.
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(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.
4. EARLY TERMINATION OF AGREEMENT.
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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.
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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.
(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.
[SIGNATURES TO APPEAR ON THE FOLLOWING PAGE(S)]
KORBIN ACKNOWLEDGES THAT HE HAS BEEN ADVISED TO SEEK THE ADVICE OF INDEPENDENT
COUNSEL AND THAT HE HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT
COUNSEL, READ ALL OF THE TERMS OF THIS AGREEMENT, UNDERSTANDS THIS 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
United Capturdyne Technologies, Inc.
By:
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Xxxxxxxx Xxxxx, President
