Exhibit 99.3
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into on
this 23rd day of May, 2003 ("Employment Commencement Date"),
BY AND BETWEEN XXXXXXXX.XXX, INC,
a Delaware corporation,
hereinafter referred to as
"COMPANY"
AND XXXXX X. XXXXXXXX, XX.
a resident of the State of Florida,
hereinafter referred to as
"EMPLOYEE"
1. APPOINTMENT, TITLE AND DUTIES. Company hereby employs Employee to
serve as its Vice President of Network Operations. In such capacity, Employee
shall report to the President of Company and shall have such powers, duties and
responsibilities hereinafter assigned to Employee from time to time by the Board
of Directors of Company, including performing such duties at the request of
Company or its affiliated corporations.
2. TERM OF AGREEMENT. This Agreement shall commence on the Employment
Commencement Date and shall terminate upon the earlier of: (i) one (1) year from
the date of this Agreement; provided, however, that this Agreement automatically
renews for a period of one (1) year on the first anniversary of the Employment
Commencement Date unless either party provides the other with forty-five (45)
written notice of its intention not to renew this Agreement (ii) the date of the
voluntary resignation of Employee by delivery of written notice to Company,
(iii) the date of Employee's death or determination of Employee's Disability (as
defined in Paragraph 5 below), or (iii) the date of delivery of written notice
by the Company to Employee that this Agreement is being terminated by the
Company, subject to the fulfillment by Company of its obligations pursuant to
Paragraph 6 herein.
3. ACCEPTANCE OF POSITION. Employee hereby accepts the position of Vice
President of Network Operations of Company and agrees that, during the term of
this Agreement, he will faithfully perform his duties and will devote
substantially all of his business time to the business and affairs of Company
and will not engage, for his own account or for the account of any other person
or entity, in any other business or enterprise, except with the express written
approval of the President or Chief Executive Officer of Company, which consent
shall not be unreasonably withheld; provided, however, that Company's Board of
Directors shall not be deemed to have unreasonably withheld its consent if the
business or enterprise in which Employee proposes to engage would materially
detract from the time available to Employee for the performance of Employee's
duties for the Company or would be viewed by Company as competitive to the
Company's business. Employee agrees to perform his duties faithfully, diligently
and to the best of his ability, to use his best efforts to advance the best
interests of the Company at all times, and to abide by all moral, ethical and
lawful policies, guidelines, procedures, instructions and orders given to him by
the Company from time to time.
4. SALARY AND BENEFITS. During the term of this Agreement:
A) Company shall pay to Employee a base salary of One Hundred
Twenty-Five Thousand Dollars ($125,000) per annum, paid in
approximately equal installments in accordance with the regular
payroll practices of Company. Company agrees to annually review
and consider changes to such base salary and/or bonus
compensation. The Company shall deduct from Employee's
compensation and bonus, if any, all applicable local, state,
Federal or foreign taxes, including, but not limited to, income
tax, withholding tax, social security tax and pension
contributions, if any.
B) Employee shall participate in all retirement, Company-paid
insurance, sick leave, expense reimbursement and other benefit
programs which Company shall make available to Employee.
C) Employee shall be entitled to vacation time in an amount of not
less than three (3) weeks per year, provided that not more than
two (2) weeks of such vacation time may be taken consecutively
without prior notice to, and the consent of, the President or
Chief Executive Officer of the Company.
5. CERTAIN TERMS DEFINED. For purposes of this Agreement:
A) A termination of Employee's employment by the Company shall be
deemed to be "For Cause" if it is based upon (i) an act of
dishonesty, fraud, embezzlement, breach of trust,
misappropriation or acceptance of a bribe or kickback; (ii)
material neglect by Employee of his duties, chronic
absenteeism, or any material or intentional breach of
Employee's obligations hereunder including, without
limitation, any intentional failure to implement material
policies and/or procedures established by the Company which is
not rectified to the reasonable satisfaction of Company by
Employee within ten (10) days after written notification to
Employee of said absenteeism, breach or violation; or (iii)
the conviction or a plea of nolo contendere, by Employee of a
felony or of a crime involving fraud, dishonesty or moral
turpitude in the state of Florida.
B) A resignation by Employee shall not be deemed to be voluntary,
and shall be deemed to be a resignation for "Good Reason" if it
is based upon (i) a material breach by the Company of the
Company's obligations to Employee under this Agreement or any
agreement with Employee relative to options, warrants or equity
ownership of Company, (ii) a reduction in Employee's salary
and/or benefits, as set forth in Paragraph 4 or (iii) a
diminution in the duties of Employee not consistent with that
of an executive officer.
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6. CERTAIN BENEFITS AND OBLIGATIONS UPON TERMINATION. In the event that
Employee's employment terminates because: (i) the Company has terminated
Employee other than "For Cause," as described above or (ii) Employee has
voluntarily resigned for "Good Reason," as described above, then:
A) The Company shall pay Employee his base salary for a period of
one (1) year from the date of such termination;
B) The Company shall pay all cost and expenses associated with
continuing all of Employee's then current insurance coverages
and related benefits for a period of one (1) year from the date
of such termination; and
C) The Company shall pay all accrued but unpaid or unused
vacation, sick pay and expense reimbursement shall be
calculated and paid within thirty (30) days following the
termination of Employee's employment (collective with (A) and
(B) "Severance Pay").
In the event that Employee's employment terminates because: (i) the
Company has terminated Employee "For Cause," as described above, (ii) Employee
has voluntarily resigned other than for "Good Reason," or (iii) Employee dies or
becomes Disabled, then Company shall have no further financial obligations to
Employee except for payment of all accrued but unpaid or unused vacation, sick
pay and expense reimbursement shall be calculated and paid within thirty (30)
days following the termination of Employee's employment.
7. CONFIDENTIALITY. Employee hereby acknowledges his understanding that
as a result of his employment by Company, he will have access to, and possession
of, valuable and important confidential or proprietary data, information, ideas,
concepts, designs, devices, lists, compilations, formulas, source code and/or
subject code, copyrights, trademarks, patents, patent applications, patent
designs, protocols, procedures, development technical information, know-how,
show-how, marketing activity procedures, patterns, models, private or secret
processes, data and trade secrets that relate to Company, its operations and its
future plans, its business, products, methods, services, technologies, business
records, plans, inventions ideas, customers, suppliers, agreements, finances or
any other aspect of Company, its employees, officers, directors or shareholders
or others who have provided such information to Company in confidence, not
otherwise known by Employee (hereinafter referred to as "Confidential
Information"). Employee hereby agrees that he will not, either during the term
of his employment with Company, or at any time before or after the term of his
employment with Company, divulge or communicate to any person or entity, or
direct any employee or agent of Company to divulge or communicate to any person
or entity, or use to the detriment of Company or for the benefit of any other
person or entity, or make or remove any copies of, such Confidential Information
or proprietary data or information, whether or not marked or otherwise
identified as confidential or secret. Upon any termination of this Agreement for
any reason whatsoever, Employee shall surrender to Company any and all
Confidential Information, including but not limited to files, sketches,
memoranda, notes, drawings, models, prototypes, records, reports, lists,
photographs, plans, maps, surveys, pricing structures, customer lists,
specifications, accountings, papers or other documents made by or compiled by or
made available to Employee, during the course of employment with Company, and
any and all copies thereof and all manuals, print-outs, discs, diskettes, tapes,
cassettes or any other media or hard-copy representation used therefor, both
masters and duplicates, whether or not they contain Confidential Information and
any and all other materials relating to the Company or any of its business that
Employee has in his possession, whether or not such material was created or
compiled by Employee, but excluding, however, personal memorabilia belonging to
Employee. With the exception of such excluded items, materials, etc., Employee
acknowledges that all such Confidential Information is solely the property of
Company, regardless of where such Confidential Information is located or stored,
and that Employee has no right, title or interest in or to such materials.
Notwithstanding anything to the contrary set forth above in this Paragraph 7,
the provisions of this Paragraph 7 shall not apply to information which: (i) is
or becomes generally available to the public other than as a result of
disclosure by Employee, (ii) is already known , and can be judicially verified,
to Employee as of the date of this Agreement from sources other than Company, or
(iii) is required to be disclosed by law or by regulatory or judicial process.
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8. WORK PRODUCT. Employee hereby acknowledges and understands that, as
a result of his employment with Company, he will participate in the development
of, have access to and possession of valuable and important Work Product of the
Company. For the purposes of this Agreement, the term "Work Product" shall mean
anything that is invented or created by Employee, alone or with others, during
Employee's employment by Company, including, without limitation, all ideas,
designs, Inventions, discoveries, formulae, processes, techniques, know-how,
data, developments, writings, improvements, arrangements, code, graphics, models
and prototypes. Work Product shall be considered Confidential Information for
purposes of this Agreement. With respect to Work Product, Employee agrees to the
following:
A) All Work Product is the sole and exclusive property of Company;
and Employee hereby relinquishes all rights, title and interest
thereto.
B) Employee agrees to disclose promptly to Company or any persons
designated by Company all Work Product conceived or reduced to
practice, alone or jointly with others, pertaining to Company
business or resulting from tasks assigned by Company, during
the period of employment. Employee will maintain adequate and
current written records of all Work Product, during the term of
employment. These records will be available to and will remain
the sole property of Company at all times.
C) Upon termination of Employee's employment with Company,
regardless of the reason for termination, or upon Company's
request, Employee will relinquish to Company all originals and
copies, however made, stored or recorded, of the Work Product
and of Confidential Information, pertaining to the Work
Product.
D) To the extent that any of the Work Product is capable of
protection by copyright or patent, Employee acknowledges that
it is created within the scope of Employee's employment and is
a work made for hire. To the extent that any such material may
not be a work made for hire, Employee hereby assigns to Company
all right, title and interest in such material.
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E) To the extent that any of the Work Product is an invention,
Employee hereby assigns to Company all right, title and
interest in such invention.
F) To the extent that any of the Work Product is neither capable
of copyright or patent protection nor an invention, Employee
hereby assigns to Company all rights in such Work Product.
G) Employee agrees to execute any documents or provide assistance
at any time reasonably requested by Company in connection with
the registration of copyright, the assignment or securing of
patent protection for any invention or other perfection or
protection of Company's ownership of the Work Product.
9. INVENTIONS. Employee understands and agrees that, as a result of his
employment by Company, he may participate, directly or indirectly materially or
incidentally in the development of Inventions. For purposes of this Agreement
the term "Inventions" shall mean those discoveries, any and all inventions,
procedures, innovations, system, programs, techniques, processes, information,
modifications, industrial designs, developments, designs, improvements or ideas
conceived by Employee, alone or with others through the use of Company
resources. "Inventions" does not include discoveries, developments, designs,
improvements and/or ideas which: (a) were judicially verified to be conceived by
Employee prior to the date of this Agreement and (b) which Employee can document
were conceived prior to the execution of this Agreement. Inventions shall be
considered Confidential Information for purposes of this Agreement. With respect
to Inventions, Employee agrees to the following:
A) Employee shall promptly execute instruments, if any,
considered necessary by Company to convey or perfect Company's
ownership in any United States or foreign patents or patent
applications, including any continuations,
continuations-in-part, divisions and reissues thereof and any
copyright applications therefor; and Employee agrees he shall
assist Company in obtaining, defending and enforcing its
rights therein. Company shall pay all reasonable expenses
incurred in connection therewith, including Employee's costs
and expenses. In the event Employee is no longer employed by
Company, he will be paid daily compensation for his time spent
in connection therewith at the rate in effect when he left
Company's employ or at a daily rate determined by dividing his
taxable income for the prior calendar year by 250 days,
whichever rate is greater.
B) All Inventions shall be the property of Company, whether or not
Company seeks patent or copyright protection therefor, to the
extent such Inventions are not deemed in the public domain,
according to intellectual property law, unless such Inventions
become part of the public domain due to the breach by Employee
of his obligations under this Agreement.
C) During and after Employee's employment with Company, Employee
shall assign, and Employee does hereby assign, to Company all
of Employee's rights, title and interest to such Inventions and
to applications for letters patent and to letters patent
granted upon such Inventions, whether in the United States or
in a foreign country.
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D) During and after Employee's employment with Company, Employee
shall execute and deliver promptly to Company (without charge
to it, but at its expense) such written instruments and shall
do such other acts as may be necessary in the opinion of
Company to obtain and maintain letters patent granted upon
Inventions and to vest the entire right and title thereto in
Company.
E) In the event that any invention is disclosed or made the
subject of a patent application filed by Employee within one
year after Employee leaves the employ of Company, Employee will
promptly disclose same to Company; and such invention shall be
conclusively presumed to have been conceived or to have
resulted form developments made during the period of Employee's
employment by Company; and Employee agrees that any such
Inventions will belong to Company, unless Employee can provide
evidence to the contrary.
10. COVENANT NOT TO COMPETE. Employee agrees that it would be
impossible to engage in the business (other than on behalf of the Company in the
course of his employment with the Company) without causing significant injury to
the Company's legitimate business interests, including, without limitation, the
Company's interests in (i) protecting its trade secrets and other Confidential
Information and (ii) preserving its relationships with its existing and
prospective customers, suppliers and other business relationships. Employee
further agrees that Company has provided and will provide him with extraordinary
and specialized training with regard to the conduct of the business and beyond
the training, if any, that he possessed prior to commencing his employment with
the Company. Employee further agrees that the extraordinary and specialized
training that the Company as provided and will provide him with has contributed
and will contribute to the Company's goodwill with its existing and prospective
customers, suppliers and other business relationships. For and in consideration
of this Agreement, and the acquisition of Direct Partner Telecom, Inc., Employee
agrees that, during the term of this Agreement and while Employee is otherwise
employed by Company and for a period of three (3) years following the
termination of this Agreement by Company "For Cause" or by Employee other than
for "Good Reason," he will not, directly or indirectly, own, control,
participate in the ownership of, manager or control, have a proprietary interest
in, be employed by or serve as a consultant or independent contractor to, or in
any other capacity for, or establish any business relationship with, any firm,
individual, partnership, joint venture, corporation, limited liability company
or other entity whatsoever, of whatever nature, which shall in any means or
manner be engaged in the business of providing the same type of
telecommunications services as the Company provides. Notwithstanding the
foregoing, in the event this Agreement is terminated by Company other than "For
Cause" or by Employee for "Good Reason" then the aforementioned restriction
shall only apply for such period of time that Employee is receiving Severance
Pay plus six (6) months. Employee acknowledges and agrees that, but for the
Employees execution of this provision, Covenant Not to Compete, the Company
would not have agreed to enter into this Agreement or enter into the acquisition
of Direct Partner Telecom, Inc. This Covenant Not to Compete is intended for the
benefit of Company, Direct Partner Telecom, Inc. Xxxxxxx Xxxx and Xxxxxx
Xxxxxxxx. Further, this Covenant Not to Compete may be enforced by any successor
or assignee of the Company, Direct Partner Telecom, Inc., Xxxxxxx Xxxx and/or
Xxxxxx Xxxxxxxx.
11. NON-SOLICITATION. By the execution hereof, Employee agrees that,
during the term of this Agreement and while Employee is otherwise employed by
Company and for a period three (3) year(s) following the termination or
expiration of this Agreement or Employee's employment, whichever is longer, he
will not solicit or do any act which might reasonably be expected to direct
business, employees, customers or clients from the Company.
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12. INJUNCTION. Employee agrees that any breach of the covenants or
agreements contained in Paragraphs 7, 10 and 11 shall cause irreparable injury
to Company and its affiliates for which there is and shall be no adequate remedy
at law. Accordingly, Employee hereby consents to the issuance by any court of
competent jurisdiction of injunctions, both temporary and permanent, in favor of
Company enjoining any such breach or violation of the covenants or agreements
contained herein; provided, that no request for or receipt of any such
injunction by Company shall be considered an election of remedies or waiver of
any right to assert any other remedies Company may have against Employee, either
at law or in equity.
13. ATTORNEYS' FEES. In the event that any action or proceeding is
brought to enforce the terms and provisions of this Agreement, the prevailing
party shall be entitled to recover reasonable attorneys' fees and costs.
14. EFFECT OF AGREEMENT; NON-LIMITATION. This Agreement shall not be
construed to limit in anyway shop rights or common law or contractual rights of
Company in or to any discoveries, designs, developments, inventions,
improvements and innovations, whether patentable or not relating to all Work
Product, data and records, pertaining in and to any Confidential Information,
which Company has or may have by virtue of Employee's employment and which is or
may be useful in connection with the Company business.
15. TERMINATION OF EMPLOYMENT; INFORMATION. Upon termination of
Employee's employment with the Company and for one (1) year thereafter, Employee
shall advise Company of the name and address of the Employee's future employer.
16. PUBLICATION OF AGREEMENT. Company may notify anyone employing
Employee or evidencing an intention to employ Employee as to the existence and
provisions of this Agreement.
17. NOTICES. All notices and other communications provided to either
party hereto under this Agreement shall be in writing and delivered by hand
delivery, overnight courier service or certified mail, return receipt requested
to the party being notified at said party's address set forth adjacent to said
party's signature on this Agreement, or at such other address as may be
designated by a party in a notice to the other party given in accordance with
this Agreement. Notices given by hand delivery or overnight courier service
shall be deemed received on the date of delivery shown on the courier's delivery
receipt or log. Notices given by certified mail shall be deemed received three
(3) days after deposit in the U.S. Mail.
18. CONSTRUCTION. In construing this Agreement, if any portion of this
Agreement shall be found to be invalid or unenforceable, the remaining terms and
provisions of this Agreement shall be given effect to the maximum extent
permitted without considering the void, invalid or unenforceable provision.
Without limiting the generality of the foregoing, to the extent that any
provision contained in Sections 7, 10, and 11 hereof is deemed unenforceable by
virtue of its scope in terms of area, business activity prohibited and/or length
of time, but could be enforceable by reducing any or all thereof, Employee and
Company agree that the same shall be enforced to the fullest extent permissible
under the laws and public policies applied in the jurisdictions in which
enforcement is sought. In construing this Agreement, the singular shall include
the plural, the masculine shall include the feminine and neuter genders, as
appropriate, and no meaning or effect shall be given to the captions of the
paragraphs in this Agreement, which are inserted for convenience of reference
only.
19. CHOICE OF LAW. This Agreement shall be governed and construed in
accordance with the internal laws of the State of Florida without resort to
choice of law principles.
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20. INTEGRATION; AMENDMENTS. This is an integrated Agreement. This
Agreement constitutes and is intended as a final expression and a complete and
exclusive statement of the understanding and agreement of the parties hereto
with respect to the subject matter of this Agreement. All negotiations,
discussions and writings between the parties hereto relating to the subject
matter of this Agreement are merged into this Agreement, and there are no rights
conferred, nor promises, agreements, conditions, undertakings, warranties or
representations, oral or written, expressed or implied, between the undersigned
parties as to such matters other than as specifically set forth herein or
directly related thereto. No amendment or modification of, or addendum to, this
Agreement shall be valid unless the same shall be in writing and signed by the
parties hereto. No waiver of any of the provisions of this Agreement shall be
valid unless in writing and signed by the party against whom it is sought to be
enforced.
21. BINDING EFFECT. This Agreement is binding upon and shall inure to
the benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns; provided, however, that Employee shall
not be entitled to assign his interest in this Agreement (except for an
assignment by operation of law to his estate), or any portion hereof, or any
rights hereunder, to any party. Any attempted assignment by Employee in
violation of this Paragraph 21 shall be null, void AB INITIO and of no effect of
any kind or nature whatsoever.
22. SURVIVAL. The provisions contained in Paragraphs 7, 10, and 11
shall survive the termination of this Agreement.
23. THIRD PARTY BENEFICIARIES. This Agreement, including but not
limited to Paragraph 10, may be, at the option of any third party beneficiary,
enforced by Direct Partner Telecom, Inc., Xxxxxxx Xxxx and/or Xxxxxx Xxxxxxxx,
each of whom are specifically third party beneficiaries of this Agreement,
including Paragraph 10 hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date set forth above to be effective as of the date specified in the preamble of
this Agreement.
XXXXXXXX.XXX, INC.
By
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Name
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Title
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"Company"
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XXXXX X. XXXXXXXX, XX.
"Employee"
