Exhibit 10.12
UNIVERSAL BROADBAND COMMUNICATIONS, INC.
EMPLOYMENT AGREEMENT
FOR XXXXXXX X. XXXXXX, CHIEF OPERATIONS OFFICER
This Agreement is entered into on this 4th day of August 2002, in
the City of Irvine, California, by and between UNIVERSAL BROADBAND
COMMUNICATIONS, INC., a Nevada Corporation (hereinafter referred to as
"COMPANY") and XXXXXXX X. XXXXXX (hereinafter referred to as "EMPLOYEE")
and collectively called the "Parties". As of the date of the signing of
this Agreement, Xxxxxxx X. Xxxxxx is serving as Chief Operations Officer
for the Company, referred to in this Agreement as "COO".
WITNESSETH:
WHEREAS, Employer is desirous of employing Executive in the capacity
hereinafter stated, and Executive is desirous of continuing in the employ
of Employer in such capacity, for the period and on the terms and
conditions set forth herein;
NOW THEREFORE, in consideration of the premises and of the mutual
covenants and conditions herein contained, the parties hereto, intending
to be legally bound, do hereby agree as follow:
1. EMPLOYMENT
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Employer hereby employs Executive as its Chief Operations Officer,
and Executive accepts those duties that are customarily performed by the
President and Chief Operations Officer of a telecommunications company
and accepts all other duties described herein, and agrees to discharge
the same faithfully and to the best of his ability and consistent with
past performances and the highest and best standards of the
telecommunications industry, in accordance with the policies of
Employer's Board of Directors as established, and in compliance with all
laws and Employer's Articles of Incorporation, Bylaws, Policies and
Procedures. Executive shall devote his full business time and attention
to the business and affairs of Employer for which he is employed and
shall perform the duties thereof to the best of his ability. Executive
shall not directly or indirectly render any services of a business,
commercial or professional nature to any other person, firm or
corporation, whether for compensation or otherwise, which are in conflict
with Employer's interests. Executive shall perform such other duties as
shall be from time to time prescribed by Employer's CEO and Board of
Directors.
Executive shall have such responsibility and duties and such
authority to transact business on behalf of Employer, as are customarily
incident to the office of Chief Operations Officer of a
telecommunications company.
2. TERM
----
Employer hereby employs Executive, and Executive hereby accepts
employment with Employer for the period of two (2) years (the "Term"),
commencing August 4, 2002, terminating
August 3, 2004, with such Term being subject to prior termination as
hereinafter provided. Where used herein, "Term" shall refer to the entire
period of employment of Executive by Employer, whether for the period
provided above, or whether terminated earlier as hereinafter provided, or
extended, or extended by mutual agreement in writing by Employer and
Executive.
3. COMPENSATION
------------
In consideration for all services to be rendered by Executive to
Employer, Employer agrees to pay Executive a starting base salary of One
Hundred and Twenty Thousand Dollars ($120,000) for the first year of this
Employment Agreement commencing the 4th day of August 2002, through the
3rd day of August 2003. For the second year of this Employment Agreement,
commencing the 4th day of August 2003, through the 3rd day of August
2004, the Executive's base salary shall be One Hundred and Fifty Thousand
Dollars ($150,000). Executive shall be awarded One Hundred and Fifty
Thousand (150,000) shares of Common Stock as a bonus, upon signing on
with the Company. Stock options of seventy five thousand (75,000) of
common stock to be granted with vesting over a twelve (12) month period
and vesting over price to be $1.50 for each option for the purchase of
one share of common stock of Universal Broadband Communications, Inc.
Employer's Board of Directors may award, at any time, by way of bonus or
otherwise, as a portion of the base salary or by way of bonus stock
options in favor of Executive. Employer's Board of Directors agrees to
act in good faith (with the Executive abstaining from any decision
relating to Executive salary in the event the Executive shall be a member
of the Board of Directors) and shall set the Executive's salary and/or
stock option awards for ensuing years based upon performance of the
Executive, taking into account consideration compensation paid to
Executives of other similar sized entities and businesses within the same
or similar industries. Nothing herein contained shall be deemed to limit,
to any extent, the right of the Employer's Board of Directors to award,
in their sole and absolute discretion, bonuses in addition to the base
salary or any stock options granted with such bonus to be paid in either
salary, accrued or otherwise, and/or stock option, provided herein, which
bonuses may from time to time be granted in favor of Executive.
Executive's salary, to the extent payable in money, shall be paid
semi-monthly.
Executive shall be entitled to participate in any and all other
employee benefits and plans that may be developed and adopted by Employer
to which Executive is eligible to participate.
4. PERFORMANCE EVALUATION
----------------------
Employee's performance shall be reviewed for the first 90 days of
employment and on an annual basis by COMPANY. Annual basis shall be
deemed as the anniversary date, which is August 4th of each year.
5. INSURANCE
---------
Employer agrees to provide Executive with health benefits, to
include medical and dental insurance, which policy is now or may
hereinafter be in effect for all other full-time employees of Employer.
6. VACATION
--------
Executive shall be entitled to accrue up to three (3) weeks vacation
during each year of the Term of this Agreement, with at least two (2)
weeks to be taken in a consecutive period. Vacation benefits shall not
accrue above three (3) weeks at any time. Employer's Board of Directors,
in its discretion, may waive the provision with respect to unused
vacation time.
Executive shall receive five (5) days of paid Personal Time per
year. Unused accrued Personal Time has no cash value.
7. AGREEMENT NOT TO COMPETE/
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TRADE SECRETS AND CONFIDENTIAL INFORMATION
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Executive recognizes that he may occupy a position of trust with
respect to business and technical information of Employer, which
information shall be the property of Employer and/or its affiliates.
Executive further acknowledges that Employer's agreement to pay the
compensation provided hereunder shall be based upon Executive's agreement
that he shall not render consulting services or otherwise provide
benefits to any entity or individual who shall directly or indirectly be
in competition with Employer. Executive therefore agrees that:
(a) During the term of this Agreement, and for any additional
period which Employer may be providing benefits, under the Terms of this
Agreement, Executive will not engage in nor have any material interest in
any business, person, firm, corporation or any other entity whether as an
advisor, principal, employee, independent contractor, agent, partner,
officer, director, stockholder or member of any association or otherwise
that engages in any activity within any of the states, United States or
any foreign country in which the Employer conducts its business which
activity is the same as or materially similar to or directly competitive
with any activity engaged in by the Employer; or any affiliate, parent or
entity associated with Employer.
Ownership of less than two and one-half percent (2.5%) of the
outstanding shares of capital stock or beneficial interest in an entity
shall not constitute a breach of this section. Exception granted to Get
Savage Consulting, LLC ("GSC, LLC") and Wholesale
Telecommunication Services, Inc. ("WTS"), so long as COO does not
actively participate in either company.
(b) Executive shall not, directly or indirectly, without the prior
written consent of the Employer (which may be withheld at the sole
discretion of Employer), disclose to any person other than employees of
Employer or any affiliate, parent or entity associated with Employer, any
Confidential Information.
(c) Executive shall not, directly or indirectly, without the prior
written consent of the Employer, which may be withheld at its sole
discretion, use any Confidential Information for Executive's own use
independent of Employer or any affiliate, parent or entity associated
with Employer.
(d) Executive shall return promptly upon the termination of this
Agreement, or otherwise upon the request of Employer, any and all
originals and copies of any documentation or materials containing any
Confidential Information.
(e) For purposes of this Agreement, the term "Confidential
Information" shall include information of the nature and in the form
specified below which is owned by or in the possession of Employer which
is disclosed to the Employer in connection with the business of the
Employer, which information relates to (i) potential or existing
acquisitions of Employer, (ii) the Employer's financial data, (iii) the
Employer's employee compensation or performance data, and (iv) any other
information identified to the Executive as confidential by the Employer,
an executive officer thereof; provided, however, that this provision
shall not apply to any information which is publicly available, or become
available to Executive from any third party who is not breaching, to the
knowledge of Executive, any obligation of confidentiality to Employer, or
to any disclosures which are required to be made under legal process, by
subpoena or other court order.
8. TERMINATION
-----------
Employer shall have the right to terminate this Agreement for any of
the following reasons by serving written notice upon Executive:
(a) willful breach of, habitual neglect of, willful failure to
perform, or inability to perform, Executive's duties and obligations as
Chief Operations Officer;
(b) illegal conduct, constituting a crime involving moral
turpitude, conviction of a felony, or any conduct detrimental to the
interests of Employer;
(c) physical or mental disability rendering Executive incapable of
performing his duties for a consecutive period of 180 days, or by death.
In the event of such disability, Employer will provide salary
continuation for 180 days, less accrued sick leave. Accrued sick leave is
to be utilized until exhausted prior to salary continuation provided
herein; or
(d) determination by Employer's Board of Directors that the
continued employment of Executive is detrimental to the best interests of
Employer, or for any reason whatsoever as determined by Employer's Board
of Directors and in the sole and absolute discretion of Employer's Board
of Directors.
In the event this Agreement is terminated for any of the reasons
specified in the paragraphs (a), (b) or (d) above, Executive will be paid
two (2) weeks' salary calculated as of the date of Executive's
termination, plus any pay in lieu of vacation accrued to, but not taken
as of the date of termination. Such termination pay shall be considered
to be in full and complete satisfaction of any and all rights, which
Executive may enjoy under the Terms of this Agreement other than rights,
if any, to exercise any of the stock options vested prior to such
termination. The insurance benefits provided herein shall be extended at
Employer's sole cost until the end of the month in which Executive is
terminated.
Executive shall give thirty (30) days prior notice, in writing, to
Employer in the event Executive resigns or voluntarily terminates
employment.
9. INDEMNIFICATION
---------------
To the extent permitted by law, Employer shall indemnify Executive
if he was or is a party of is threatened to be made a party in any action
brought by a third party against Executive
(whether or not Employer is joined as a party defendant) against
expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred in connection with said action of Executive acted in
good faith and in a manner Executive reasonably believed to be in the
best interest of Employer (and with respect to a criminal proceeding if
Executive had no reasonable cause to believe his conduct was unlawful),
provided that the alleged conduct of Executive arose out of and was
within the course and scope of his employment as an officer or employee
of Employer.
10. ARBITRATION
-----------
Any dispute related to the interpretation of enforcement of this
Employment Agreement shall be enforceable only by arbitration in the
County of Orange, California (or such other metropolitan area to which
the Employer's principal executive offices may be relocated), in
accordance with the commercial arbitration rules then in effect of the
American Arbitration Association, before a panel of three arbitrators,
one of whom shall be selected by the Employer, the second of whom shall
be selected by the Executive and the third party of whom shall be
selected by the other two arbitrators. In the absence of the American
Arbitration Association, or if for any reason arbitration under the
arbitration rules of the American Arbitration Association cannot be
initiated, or if one of the parties shall fail or refuses to select an
arbitrator, or if the parties failed or refused to select an arbitrator,
or if the arbitrators selected by the Employer and the Executive cannot
agree on the selection of the third arbitrator within seven (7) days
after such time as the Employer and the Executive have each been notified
of the selection of the other's arbitrator, the necessary arbitrator or
arbitrators shall be selected by the presiding judge of the court of
general jurisdiction in the metropolitan area where arbitration under
this section would otherwise have been conducted. Each arbitrator
selected as provided herein is required to be or have been a director or
an executive officer for a corporation whose shares of common stock were
listed during at least one year of such service on the New York Stock
Exchange or the American Stock Exchange or quoted on the National
Association if Securities Dealers Automated Quotations System. The
arbitrators shall award to the Employer its legal fees and expenses
incurred in connection with any arbitration proceeding is commenced by
the Executive and the Executive has no reasonable basis for initiating
such proceeding. Any award entered by the arbitrators shall be final,
binding and nonappealable and judgment may be entered thereon by any
party in accordance with applicable law in any court or competent
jurisdiction except to the extent an Arbitration award is appealable
under applicable law. This arbitration provision shall be specifically
enforceable.
11. RETURN OF DOCUMENTS
-------------------
Executive expressly agrees that all manuals, documents, files,
reports, studies, instruments or other materials used or developed by
Executive during the Term are solely the property of Employer, and
Executive has no right, title of interest therein. Upon termination of
this Agreement, Executive or Executive's representatives shall promptly
deliver possession of all of said property to Employer in good condition.
12. NOTICES
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All notices, requests, demands, claims and other communications
hereunder shall be in writing. Any notice, request, demand, claim or
other communication hereunder shall be deemed duly given (i) if
personally delivered against written receipt, when so delivered, (ii) if
mailed by
registered or certified mail, return receipt requested, postage prepaid
and addressed to the intended recipient as set forth below, five (5)
business days after being so mailed, (iii) if given by telefax or
telecopier, once such notice or other communication is transmitted to the
telex or telecopier number specified below and the appropriate answer
back or telephonic confirmation is received, provided that such notice or
other communication is promptly thereafter delivered in accordance with
the provision of clause (i), (ii), or (iii) hereof, or (iii) if sent
through a nationally recognized overnight service which guarantees next
day delivery, on (1) business day after being so sent:
If to the Executive:
XXXXXXX X. XXXXXX
______________________
______________________
If to the Employer:
UNIVERSAL BROADBAND COMMUNICATIONS, INC.
00000 Xxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Any party may give any notice, request, demand, claim or other
communication hereunder using any other means (including ordinary mail or
electronic mail), but no such notice, request, demand, claim or other
communication shall be deemed to have been duly given unless and until it
actually is received by the individual for whom it is intended. Any party
may change the address to which notices, requests, demands, claims and
other communications hereunder are to be delivered by giving the other
parties notice in manner herein set forth.
13. SUCCESSORS AND ASSIGNS
----------------------
(a) OF THE EMPLOYER. The Employer shall require any successor
(whether direct or indirect, by purchase, merger, consolidation,
reorganization or otherwise) to all or substantially all of the business
and/or assets of the Employer expressly to assume and to agree to perform
this Agreement in the same manner and to the same extent to the Employer
would be required to perform if no such succession had taken place. This
Agreement shall be binding upon the Employer and any successor of or to
the Employer, including without limitation any person acquiring directly
or indirectly all or substantially all of the business and/or assets of
the Employer whether by sale, merger, consolidation, reorganization or
otherwise (and such successor shall thereafter be deemed the "Employer"
for the purposes of this Agreement), but shall not otherwise be
assignable or delegable by the Employer without the written consent of
the Employee which may be withheld or granted in the sole discretion of
the Employee.
(b) OF THE EXECUTIVE. This Agreement shall inure to the benefit of
and be enforceable by the personal or legal representatives, executors,
administrators, successors, assigns, heirs, distributes and/or legatees
of the Executive, although duties of Executive are not assignable.
(c) SEVERABILITY. Any provision of this Agreement which is deemed
invalid, illegal, or unenforceable in any jurisdiction shall, as to that
jurisdiction and subject to this paragraph be ineffective to the extent
of such invalidity, illegality, or unenforceability, without affecting in
any way the remaining provisions hereof in such jurisdiction or rendering
that or any other provisions of this Agreement invalid, illegal, or
unenforceable in any other jurisdiction, provided that by reason thereof
the obligations of Executive hereunder are not increased or expanded. If
any covenant should be deemed invalid, illegal or unenforceable because
its scope is considered excessive, such covenant shall be modified so
that the scope of the covenant is reduced only to the minimum extent
necessary to render the modified covenant valid, legal and enforceable.
(d) ENTIRE AGREEMENT. This document constitutes the final,
complete, and exclusive embodiment of the entire agreement and
understanding among the parties related to the subject matter hereof and
supersedes and preempts any prior or contemporaneous understandings,
agreements, or representations by or between the parties, written or
oral.
(e) COUNTERPARTS. This Agreement may be executed on separate
counterparts, any one of which need not contain signatures of more than
one party, but all of which taken together with constitute one and the
same agreement.
(f) AMENDMENTS. No amendments or other modifications to this
Agreement may be made except by writing signed by all parties. No
amendment or waiver of this Agreement requires the consent of any
individual, partnership, corporation or other entity not a party to this
Agreement. Nothing in this Agreement, expressed or implied, is intended
to confer upon any third person any rights or remedies under or by reason
of this Agreement.
(g) CHOICE OF FORUM. All questions concerning the construction,
validity and interpretation of this Agreement will be governed by the
internal law, and not the law of conflicts, of the Sate of California.
14. BENEFIT OF AGREEMENT
--------------------
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective executors, administrators, successors
and assigns.
15. APPLICABLE LAW
--------------
This Agreement is made and entered into in the State of California,
and the laws of said State shall govern the validity and interpretation
hereof, and the performance of the parties hereto and their respective
duties and obligations hereunder.
16. CAPTIONS AND PARAGRAPGH HEADINGS
--------------------------------
Captions and paragraph headings used herein are for convenience only
and are not a part of this Agreement and shall not be used in construing
it.
17. INVALID PROVISIONS
------------------
Should any provision of this Agreement for any reason be declared
invalid, void, or unenforceable by a court of competent jurisdiction, the
validity and binding effect of any
remaining portions shall not be affected and the remaining portions of
this Agreement shall remain in full force and effect as if this Agreement
had been executed with said provision eliminated.
18. ENTIRE AGREEMENT
----------------
This Agreement contains the entire agreement of the parties and it
supersedes any and all other agreements, either oral or in writing,
between the parties hereto with respect to the employment of Executive by
Employer, except to the extent that it is contemplated that Executive and
Employer may enter into a stock option agreement and/or salary
continuation agreement. Each party to this Agreement acknowledges that no
representations, inducements, promises, or agreements, oral of otherwise,
have been made by any party, or anyone acting on behalf of any party,
which are not embodied herein, and that no other agreement, statement, or
promise not contained in this Agreement shall be valid or binding. This
Agreement may not be modified or amended by oral agreement, but only by
an agreement in writing signed by Employer and Executive.
19. CONFIDENTIALITY
---------------
This Agreement is to be held confidential. Willful breach of such
confidentiality by Executive will be subject to termination under the
provisions of 8(a) of this Agreement.
20. LEGAL COSTS
-----------
If either Executive or Employer commences an action against the
other arising out of or in connection with this Agreement, the prevailing
party shall be entitled to have and recover from the losing party
reasonable attorney fees and costs of suit.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and years first above written.
EMPLOYER: EXECUTIVE:
UNIVERSAL BROADBAND COMMUNICATIONS, INC.
a Nevada Corporation
By: /s/ XXXX XXXXX /s/ XXXXXXX XXXXXX
-------------------------------- --------------------------------
XXXXXXX XXXXXX
Its: President
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