Employment Agreement between United Capturdyne
Technologies, Inc., and Mr. Xxxx Xxxxx
Agreement made this ______________ day of 2001 by and between United
Capturdyne Technologies, Inc., a Florida corporation (hereinafter called the
"Company") and Xxxx Xxxxx, an individual (hereinafter called the "Employee")
regarding Employee's employment by Company, Employee's work product, the
confidentiality of materials of Company, Employee's agreement not to compete
with Company, and Employee's provision of Compensation and Benefits.
WITNESSETH:
The company wishes to employ the Employee and the Employee wishes to
enter into the employ of the Company on the terms and conditions contained in
this agreement.
WHEREAS, the Company is engaged in transaction processing services;
WHEREAS, the Company believes that it will benefit from the Employee's
particular and unique skills, experience and background;
WHEREAS, prior to entering into this written Agreement, the Company and
the Employee agreed to certain terms and conditions, including Employee
agreement to sign an Employment Agreement with a restrictive covenant and
confidentiality provision
NOW, THEREFORE, in consideration of the facts, mutual promises and
covenants contained herein and intending to be legally bound hereby, the Company
and the Employee agree as follows:
1. Definitions. As used herein, the following terms shall have the meanings set
forth below unless the contexts otherwise require:
(a) "Base Compensation" shall mean the annual rate of compensation set
forth in Section 3(a) herein.
(b) "Business" shall mean the business conducted by the Company in the
past and on the date of execution of this Agreement, including
business activities under investigation or in development stages, all
other business activities which flow therefrom by a reasonable
expansion of the present activities of the Company, all business
activities which may be developed by the Company during the period of
the Employee's employment by the Company, and all business activities
now conducted by the Company or any affiliate thereof or which may be
developed by the Company or such affiliates, during such period as
reasonable expansions of their present activities. The Company, in
very general terms, currently provides custom point of sale
processing, account management, recurring billing, private label
credit cards, point of sale check conversion, lock box truncation,
internet payment processing, frequent shopper and customer incentive
programs, electronic debit and credit, and electronic gift
certificates. The trade names associated with such financial services
are but not limited to CHECKMAX, ACCOUNTMAX, TRANSMAX, INTERMAX and
XXXXXX.
(c) "Cause" shall include, but not be limited to the Employee's:
(i) Performance of duties in an incompetent manner;
(ii) Commission of any act of fraud, insubordination,
misappropriation or personal dishonesty relating to or involving
the Company in any way;
(iii) Gross negligence;
(iv) Violation of any express direction of the Company or any
material violation of any rule, regulation, policy or plan
established by the Company from time to time regarding the
conduct of its employees and/or its Business, if such violation
is not remedied by the Employee within thirty (30) days of
receiving notice of such violation from the Company;
(v) Violation of any obligation of this Agreement that is
demonstrably willful and deliberate on the Employee's part and
is not remedied by the Employee within thirty (30) days after
receiving notice of such violation from the Company;
(vi) Disclosure or use of Confidential Information, as defined in
Sections 8 (a), (c), (d), and (f), other than as required in the
performance of the Employee's duties under this Agreement;
(vii) Actions that are clearly contrary to the best interest of the
Company and is not remedied by the employee within (30) days
after receiving notice of such violation from the Company.
(d) "Confidential Information" shall have the meaning specified in Section
8(c) hereof.
(e) "Disability" or "Disabled" shall mean the Employee's inability, for a
period of twelve (12) consecutive weeks, to perform any of the
essential duties of the Employee's position, with or without any
reasonable accommodation required by law, due to a mental or physical
impairment which substantially limits one or more major life
activities. Due to the nature of the Employee's position, the Employee
acknowledges that it would be an undue hardship on the Company if the
time periods specified in the preceding sentence were longer.
2. Term of Employment. Company will employ Employee and Employee accepts
employment upon the terms and conditions specified in this Agreement. This
Agreement starts as of the date set forth above and remains in effect for an
initial period of three (3) years.
(a) Office and Duties.
(i) The Employee will be employed as the Chief Operating Officer an
Executive of the Company and will perform the duties of such a
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position as assigned by and under the direction of such offers
of the Company as it may designate from time to time.
(ii) So long as the Employee shall remain an employee of the Company,
the Employee's entire working time, energy, skill and best
efforts shall be devoted to the performance of his duties
hereunder in a manner which will faithfully and diligently
further the business and interests of the Company. The Employee
may engage in charitable, civic, fraternal and trade/
professional association activities that do not interfere with
the Employee's obligations to the Company, but the Employee
shall not work for any other for-profit business, unless given
express written authorization from the Company to do so. While
employed by Company, Employee agrees to devote Employee's full
working time to the affairs of Company Employee shall not work
as an employee, independent consultant or agent for another
entity, whether or not during the business hours of Company,
without the expressed written permission of the Company.
(iii) The Employee is not permitted or authorized to make or incur any
liabilities on behalf of the Company or to otherwise obligate
the Company in any manner whatsoever, unless expressly
authorized by the Company in accordance with specific
guidelines.
3. Base Compensation.
For all of the service rendered by the Employee to the Company, the Employee
shall receive, while employed by the Company:
(a) Base Compensation at the gross annual rate of "One Hundred Thousand
Dollars" ($100,000.00) per year, less taxes and other deductions
required by law. This Base Compensation will be payable in
installments in accordance with Company's regular payroll practices in
effect from time to time during Employee's employment. In addition to
the foregoing compensation, Employee shall receive an annual increase
of $10,000 which shall be effective on the anniversary of the signing
of this Agreement and each subsequent anniversary for the term of this
Agreement.
(b) In addition to the foregoing compensation, Employee may be eligible to
receive bonuses as designated by the Chief Operating Officer of the
Company or Company's Board of Directors.
(c) The Employee agrees and acknowledges that his employment by the
Company is full, adequate and sufficient consideration for the
restrictions and obligations set forth in Sections 7 and 9 of this
Agreement.
(d) Stock Options. Concurrently with the execution and delivery of this
Agreement by the Employee, the Company will grant the Employee
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options for forty thousand (40,000) shares of the Company's common
stock at a purchase price of $0.26 per share. In addition to the
foregoing stock options, the Company will grant the Employee options
for forty thousand (40,000) shares at a purchase price of $0.26 per
share on each subsequent anniversary following the signing of this
Agreement. All options which have been granted to the Employee may be
restricted for a period of one year and may be executed by the
Employee at anytime at the discretion of the Employee. The options
shall have an expiration date of ___________-- years following the
date they are granted to the employee and shall remain with the
Employee during the term of this Agreement and following the
termination of this Agreement.
4. Fringe Benefits.
(a) The Company will reimburse for all reasonable and necessary expenses
incurred by the Employee in connection with the performance of the
Employee's duties hereunder upon receipt of documentation therefore in
accordance with the Company's regular reimbursement procedures and
practices in effect from time to time. The Company, from time to time,
may require prior approval for individual expense items in excess of
pre-established aggregate amounts for a fixed period or in excess of
pre-established amounts for any type of expenditure during any fixed
period.
(b) The Employee shall be eligible to participate in any life, accident or
disability insurance, retirement plan(s) or other benefit plans or
programs, if any, made available to other similarly situated employees
of the Company, as long as the plans and/or programs are kept in force
by the Company and provided that the Employee meets the eligibility
requirements and other terms, conditions and restrictions of the
respective plans and programs. The Employee acknowledges and agrees
that the Company does not promise to institute or maintain any such
plans, programs or benefits.
(c) The Company will pay for the employee and immediate family portion of
the premium under the Company's group medical insurance plan for as
long as the Company employs the Employee.
(d) The Employee shall be entitled to (8) paid holidays (the eight (8)
days must be taken on the eight (8) days on which the holiday falls or
when Company's office officially observes the holiday and six (6) paid
stock/personal days per calendar year.
(e) The Employee shall be entitled to three (3) weeks of paid vacation
during each calendar year. Vacation time will accrue at a rate of
0.2884 days per week. The Employee shall take vacations at such time
or times as shall be approved by the Company, which approval shall not
be unreasonably withheld.
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5. Termination.
(a) Death. The Term of the Employee's employment hereunder shall
terminate immediately upon his death.
(b) Disability. The Company may terminate the Employee's employment if he
is disabled as defined in Section 1(e). While the Employee is employed
during any periods of the Employee's inability to work due to the
Employee's Disability, the Employee will be eligible to receive his
Base Compensation provided that the Employee (i) first takes all his
unused paid time off (i.e., sick/personal and vacation days) and (ii)
provides the Company with medical certification, whenever the Company
reasonably requests, confirming his inability to work on the specific
day(s) of his absence.
(c) Cause. The Company may terminate the Employee's employment hereunder
for Cause, as defined in 1(c).
(d) Any and all disputes regarding whether the Employee's discharge is
with or without Cause, as determined by this Agreement, will be
resolved by arbitration to be held in Ft. Lauderdale, FL in accordance
with the Employment Dispute Resolution Rules of the American
Arbitration Association then in effect.
(e) Termination of the Employee's employment pursuant to this Section 6
shall release the Company of all its future liabilities and
obligations under this Agreement, except as otherwise expressly
provided herein. Termination of the Employee's employment pursuant to
this Section shall not, however, release the Employee from the
Employee's obligations and restrictions as stated in Sections 7 and 8
of this Agreement.
6. Post-Termination Compensation.
(a) If the Employee's employment shall be terminated in accordance with
this Agreement, the Company shall have no obligation whatsoever to
make any further payments or provide any further benefits hereunder
for any period subsequent to the date of such termination to the
Employee or his surviving spouse, as the case may be, unless otherwise
provided in the following provisions of this Section 6.
(b) If the Employee's employment shall be terminated in accordance with
this Agreement, the Employee or his surviving spouse, as the case may
be, will receive the Employee's Base Compensation for any days
actually worked by the Employee prior to the termination of his
employment.
(c) If the Employee's employment is terminated by reason of the Employee's
death or Disability, then the Employee or the Employee's surviving
spouse, as the case may be, shall also be eligible to receive an
additional three (3) months of the Employee's Base Compensation, as
determined by the Employee's Base Compensation as of the Employee's
termination date, less amounts payable, if any, under the Company paid
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insurance, benefit plan or policy under which the Employee was covered
at the time of termination, including but not limited to any workers
compensation payments and/or any death or disability insurance
payments (due employee under the Company-paid plans/policies) made to
the Employee and/or the Employee's surviving Spouse, as the case may
be, due to the Employee's disability or death. Such payment shall be
made in periodic installments in accordance with the then current
payroll practices of the Company or in one lump sum, based on the
Company's sole discretion.
(d) All fringe benefits described in Section 4 will terminate on the last
day of the month in which the Employee's employment is terminated,
unless stated otherwise within this Agreement or unless the plan
document(s)/insurance contracts require an earlier termination date.
The plan document(s)/insurance contracts shall govern if there is any
conflict between this Agreement and the applicable plan document(s)/
insurance contracts. In particular, the Employee's eligibility to
continue to participate in the Company's group health insurance plan
following the termination of such insurance coverage upon the
termination of his employment will be pursuant to applicable law,
subject to all applicable eligibility requirements and other terms,
conditions, restrictions and exclusions, and shall be at the
Employee's sole expense, effective on the first day of the month
following the month in which the Employee's employment terminates.
7. The Company Property. All advertising, sales, marketing, recruiting and
other materials or articles or information, including without limitation
data processing reports, computer programs, software, prospective and actual
customer/client information and records, billing rates, all business
records, employee handbook and/or policies, price lists or related
information, or any other materials or data of any kind furnished to the
Employee by the Company or developed by the Employee on behalf of the
Company or at the Company's direction or for the Company's use or otherwise
in connection with the Employee's employment hereunder (whether or not the
information contained herein is deemed confidential), are and shall remain
the sole property of the Company, including in each case all copies thereof
in any medium, including computer tapes and other forms of information
storage. If the Company requests the return of such materials at any time
during or at or after the termination of the Employee's employment, the
Employee shall deliver all such materials immediately, retaining no copies,
of the same to the Company.
8. Non-Competition, Confidentiality and Assignment of Inventions.
(a) For so long as the Employee shall be employed by the Company and for a
period of six (6) months thereafter, the Employee shall not, for his
own benefit or the benefit of any other person or entity, directly or
indirectly, in any capacity (as an employee, officer, director,
shareholder, partner, agent, principal, independent contractor, owner
or otherwise) (i) induce or attempt to induce any employee or
independent contractor of the Company to terminate his or her
employment or other relationship with the Company; (ii) hire any
employee or independent contractor ever employed or engaged by the
Company; (iii) divert, solicit or do any business with any current,
Former or Potential Customer(s)/Client(s) of the Company; (iv) cause
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or attempt to cause any current, Former or Potential Customer(s)/
Client(s) to refrain from doing business with the Company or to reduce
the amount of business they do with or give to the Company or
(v) engage in (as a principal, shareholder, partner, director,
officer, agent, independent contractor, employee, consultant or
stockholder who owns greater than five percent 5%) of the outstanding
shares of stock, or in any other capacity) or be financially
interested in any business operation which is involved in Business
activities which are the same as, similar to or in competition with
Business activities carried on by the Company, or being definitely
planned by the Company at the time of the termination of the
Employee's employment, if such business operation (a) is located,
(b) conducts any Business activities which are the same as, similar to
or in competition with the Company's Business activities or (c) has an
office or premises, within 75 miles of the Company's office in Ft.
Lauderdale or in any other location in North America where the Company
has an office, may hereafter establish an office or offices, where the
Employee has any involvement with the Company's business and affairs
in any such other location(s) during the six (6) month period
immediately preceding the termination of the Employee's employment by
the Company (irrespective of whether the Company or the Employee
terminated such employment or whether such termination was with or
without Cause). The term "Former Customer(s)/Client(s)" includes all
Customer(s)/Client(s) of the Company within the six (6) month period
immediately preceding the Employee's termination of employment by the
Company. The term "potential Customer(s)/Client(s)" includes any
prospects from which the Company solicited business during the six (6)
month period immediately preceding the termination of the Employee's
employment by the Company. Furthermore, the Employee shall receive
compensation for the duration of the term of the non-compete equal to
the Employee's base salary as determined by the terms and conditions
of this Agreement.
(b) The Company's most current list of clients can be obtained from the
Office Manager. The Company will update such list from time to time
when appropriate.
(c) During the Employee's employment and at all times thereafter, the
Employee shall not use for the Employee's personal benefit, or
disclose, communicate or divulge to, or use for the direct or indirect
benefit of any person, firm, association, company, other than the
Company, any confidential information and/or proprietary information
(collectively "Confidential Information") which the employee acquires
in the course of his employment which is not otherwise lawfully known
by and readily available to the general public. This Confidential
Information includes, but is not limited to, any information regarding
the Company's business methods, policies, procedures or techniques;
pricing information and strategy; customer purchasing, contracting and
leasing needs; inventions, including discoveries, improvements or
ideas, whether potential or not; research, marketing or development
projects, results or studies; financial controls, methods of
development bids, estimates, direct and indirect costs; employee
compensation information; trade secrets or other knowledge or
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processes of or developed by the Company; any names and addresses of
employees, suppliers, customers or clients; any data on or relating to
past, present or prospective customers or clients and any other
confidential information relating to or dealing with the business
operations or activities of the Company, made known to the Employee or
learned or acquired by the Employee while in the employ of the
Company.
(d) Any and all writings, inventions, improvements, processes, procedures
and/or techniques which the Employee may make, conceive, discover or
develop, either solely or jointly with any other person or persons, at
any time during the term of this Agreement, whether or not during
working hours and whether or not at the request or upon the suggestion
of the Company, which relates to or are useful in connection with any
Business now or hereafter carried on or contemplated by the Company,
including developments or expansions of its present fields of
operations, shall be the sole and excusive property of the Company.
The Employee shall make full disclosure to the Company of all such
writings, inventions, improvements, processes, procedures and
techniques, and shall do everything necessary or desirable to vest the
absolute title thereto in the Company. The Employee shall write and
prepare all specifications and procedures regarding such inventions,
improvements, processes, procedures and techniques and otherwise aid
and assist the Company so that the Company can prepare and present
applications for copyright or Letters Patent therefor and can secure
such copyright or Letters Patent wherever possible, as well as
reissues, renewals, and extensions thereof and can obtain the record
title to such copyright or patents so that the Company shall be the
sole and absolute owner thereof in all countries in which it may
desire to have copyright or patent protection. The Employee shall not
be entitled to any additional or special compensation or reimbursement
regarding any and all such writings, inventions, improvements,
processes, procedures and techniques.
(e) The Employee confirms that the information described in Sections 8(c)
and (d) above is confidential and constitutes the exclusive property
of the Company, and agrees that, immediately upon her termination,
whether by the Employee or by the Company and whether during the term
of this Agreement or subsequent to the expiration or termination of
this Agreement, the Employee shall deliver to the Company all
correspondence, documents, books, records, lists and other writings
relating to the Company's Business, retaining no copies, regardless of
where or by Whom said writings were kept or prepared.
(f) The provisions set forth in Section 7 and Section 8 of this Employment
Agreement shall survive the termination of the Employee's employment.
(g) The Employee agrees and acknowledges that her employment is full,
adequate and sufficient consideration for the restrictions and
obligations set forth in Sections 7 and 8 of this Agreement and that,
but for the Employee's agreement to such restrictions and obligations,
the Company would not engage him as an employee or otherwise.
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9. Miscellaneous.
(a) Indulgences, Etc. Neither the failure nor any delay on the part of
either party to exercise any right, remedy, power or privilege under
this Agreement shall operate as a waiver thereof, nor shall any single
or partial exercise of any right, remedy, power or privilege preclude
any other or further exercise of the same or of any other right,
remedy, power or privilege, nor shall any waiver of any right, remedy,
power or privilege with respect to any occurrence be construed as a
waiver of such right, remedy, power or privilege with respect to any
other occurrence.
(b) Controlling Law. This Agreement and all questions relating to its
validity, interpretation, performance and enforcement (including,
without limitation, provisions concerning limitations of actions),
shall be governed by and construed in accordance with the internal
substantive laws of the Commonwealth of Florida, notwithstanding any
conflict-of-law doctrines of such jurisdiction to the contrary, and
without the aid of any canon, custom or rule of law requiring
construction against the draftsman.
(c) Notices. All notices, requests, demands and other communications
required or permitted under this Agreement shall be in writing and
shall be deemed to have been duly given, made and received only when
hand-delivered against receipt or when deposited in the United States
mail, registered or certified mail, postage prepaid, return receipt
requested, addressed in the case of the Company to United Capturdyne
Technologies, 0000 X.X. 00 Xxxxxx, Xx. Xxxxxxxxxx, XX 00000 and in the
case of the Employee, to Xxxx Xxxxx, 0000 Xxxxxxxxxx Xxxxxx, Xxxxx, XX
00000.
(d) Binding Nature of Agreement. This Agreement shall be binding upon the
Company and shall inure to the benefit of the Company and its
successors and assigns, including any transferee of the business
operation, as a going concern, in which the Employee will be employed
and shall be binding upon the Employee, the Employee's heirs,
executors and personal representatives. None of the rights or
obligations of the Employee hereunder may be assigned or delegated.
Any entity into which the Company is merged or with which the Company
is consolidated or which acquires the Business of the Company or the
Business unit in which the Employee is to be principally employed
shall be deemed to be a successor of the Company for purposes hereof.
Should the Company become insolvent or file bankruptcy the Employee
at his option may determine that this Agreement is null and void and
Employee is thereby released from all obligations under this
Agreement.
(e) Execution in counterparts. This Agreement may be executed in any
number of counterparts, each of whom shall be deemed to be an original
as against any Party whose signature appears thereon, and all of which
shall together constitute one and the same instrument.
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(f) Provisions Separable. The provisions of this Agreement are independent
of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for
any reason any other or others of them may be invalid or unenforceable
in whole or in part.
(g) Entire Agreement. This Agreement contains the entire understanding
between the parties hereto with respect to the subject matter hereof,
and supersedes any and all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or
written, except as herein contained. The express terms hereof control
and supersede any course of performance, negotiations and/or usage of
the trade inconsistent with any of the terms hereof. This Agreement
may not be modified or amended other than by a mutual Agreement of the
parties, in writing, signed by the Employee and the Company.
(h) Section Headings. the Section headings in this Agreement are for
convenience only; they form no part of this Agreement and shall not
affect its interpretation.
(i) Jurisdiction of Courts. Any legal suit, action, claim, proceeding or
investigation arising out of or relating to this Agreement may be
instituted in any state or federal court in the Commonwealth of
Florida and each of the parties hereto waives any objection which such
party may now or hereafter have to such venue of any such suit,
action, claim, proceeding or investigation, and irrevocably submits to
the jurisdiction of any such court. Any and all service of process
and any other notice in any such suit, action, claim, proceeding or
investigation shall be effective against any party if given by
registered or certified mail, return receipt requested, or by any
other means of delivery which requires a signed receipt, postage
prepaid, mailed to such party as herein provided. Nothing herein
contained shall be deemed to affect the right of any party to serve
process in any manner permitted by law or to commence legal
proceedings or otherwise proceed against any other party in any
jurisdiction.
(j) Survival. The provisions of Sections 7 and 8 shall survive termination
of the Employee's employment, as well as this Agreement and such
Sections shall remain in full force and effect thereafter in
accordance with their terms.
(k) Employee Representation. The Employee acknowledges and agrees that his
execution of this Employment Agreement is an express condition
precedent to his employment by the Company. The Employee further
acknowledges and agrees that he has had ample opportunity to review
the terms and conditions of this Employment Agreement with attorneys
and other advisors of his choosing and that he fully understands the
terms and conditions hereof, particularly the provisions of Sections 7
and 8. The Employee agrees that he is voluntarily entering into this
Employment Agreement of his free will and accord in order to secure
employment by the Company.
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IN WITNESS WHEREOF, the parties have duly executed and delivered this
Employment Agreement as of the date first above written.
United Capturdyne Technologies, Inc. VoiceFlash Networks, Inc.
By: By:
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Title: Title:
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THE EMPLOYEE:
Xxxx Xxxxx, individually
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