Exhibit 10.10
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") dated as of November 8, 2004 by and
between iVoice Technology 3, Inc., Inc., a Nevada corporation with an address at
000 Xxxxxxx 00, Xxxxxxx, XX 00000 (the "Company"), and Xxxxx Xxxx, residing at
00 Xxxxxxxxx Xxxx, Xxxxxxx Xxxxx, Xxx Xxxxxx 00000 (the "Employee").
W I T N E S S E T H
WHEREAS, the Company desires that Employee be employed by it and render
services to it, and Employee is willing to be so employed and to render such
services to the Company, all on the terms and subject to the conditions
contained herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Employment
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Subject to and upon the terms and conditions contained in this Agreement,
the Company hereby employs Employee, for the period set forth in Paragraph 2
(subject to the terms and conditions of this Agreement), to render the services
to the Company, its affiliates and/or subsidiaries described in Paragraph 3.
2. Term
----
Employee's term of employment under this Agreement shall commence on
November 8, 2004 (the "Commencement Date") and shall continue for a period
terminating on November 7, 2005 (the "Expiration Date"), unless earlier
terminated under the terms and conditions herein (the "Employment Term").
3. Duties
------
(a) The Employee agrees that he will serve the Company faithfully
and to the best of his ability as the President and the Chief Executive Officer
of the Company, subject to the general supervision of the Board of Directors of
the Company. Employee shall be based in the Company's offices in New Jersey.
(b) Employee agrees to abide by all By-Laws and policies of the
Company promulgated from time to time by the Company.
4. Services and Best Efforts
-------------------------
Employee shall devote his attention, best efforts and ability of the
service to the Company, its affiliates and subsidiaries during the term of this
Agreement.
5. Compensation
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(a) Base Salary. Commencing on the Commencement Date, the Employee
shall receive an annual salary, payable semi-monthly during the Employment Term,
in the amount of Eighty-five Thousand Dollars ($85,000), subject to all required
federal, state and local payroll deductions. The Employee's base salary shall be
increased on each anniversary of the Commencement Date as deemed appropriate by
the Board of Directors of the Company.
(b) Incentive Compensation.
(i) For annual recorded and collected revenues of the
Company in excess of Three Hundred Thousand
Dollars ($300,000), but not exceeding Two
Million Dollars ($2,000,000), the Employee
shall receive additional annual incentive
compensation equal to seven and one-half
percent (7 1/2%) of the total annual revenues
of the Company.
(ii) For annual recorded and collected revenues of the
Company in excess of Two Million Dollars
($2,000,000), the Employee shall receive
additional annual incentive compensation, in
addition to the incentive compensation referred
to in clause (d) (i), equal to three and
one-half percent (3 1/2%) of total annual
revenues of the Company in excess of two
million dollars.
(iii) Notwithstanding the above, should the pre-tax profit
margin fall below thirty-five percent (35%),
the incentive compensation payable pursuant to
this paragraph shall be reduced by thirty-five
percent (35%).
6. Business Expenses
-----------------
Employee shall be reimbursed for only those business expenses incurred by
him (a) which are reasonable and necessary for Employee to perform his duties
under this Agreement in accordance with policies established from time to time
by the Company, which shall include and not be limited to: travel, parking,
tools and cell phone calls and (b) for which Employee has submitted vouchers
and/or receipts. The Employee shall be compensated at the rate of $.36 per mile,
or as revised from time to time, pursuant to the Internal Revenue Service's
regulations, for every mile that he drives while on Company business and
utilizing his own vehicle. Additionally, the Employee shall be provided a
notebook computer for business use that the Employee shall return to the Company
upon Termination of this Agreement.
7. Employee Benefits
-----------------
The Company shall reimburse the Employee for his actual cost of health
insurance.
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8. Vacation and Sick Leave
-----------------------
Employee shall be entitled to four (2) weeks of vacation per annum during
the Employment Term, to be taken at such times as may be mutually agreed upon by
the Company and Employee. The Employee shall be entitled to one (1) week of sick
and/or personal leave per annum during the Employment Term.
9. Death and Disability
--------------------
(a) The Employment Term shall terminate on the date of Employee's
death, in which event Employee's salary payable pursuant to Paragraph 5 through
the last day of the month in which the Employee's death did occur shall be paid
to his estate. Employee's estate will not be entitled to any other compensation
upon termination of this Agreement pursuant to this Paragraph 9(a).
(b) If during the Employment Term, Employee, because of physical or
mental illness or incapacity, shall become substantially unable to perform the
duties and services required of him under this Agreement for a period of
forty-five (45) consecutive days or ninety (90) days in the aggregate, the
Company may, upon at least ten (10) days' prior written notice given at any time
after the expiration of such 45 or 90-day period, as the case may be, to
Employee of its intention to do so, terminate this Agreement as of such date as
may be set forth in the notice. In case of such termination, Employee shall be
entitled to receive his salary payable pursuant to Paragraph 5 through the date
of termination. Employee will not be entitled to any other compensation upon
termination of this Agreement pursuant to this Paragraph 9(b).
10. Termination
-----------
(a) The Company may terminate the employment of Employee For Cause
or Without Cause during the Employment Term. Upon such termination, except as
set forth herein, the Company shall be released from any and all further
obligations under this Agreement, except that the Company shall be obligated to
pay Employee the unpaid prorated salary pursuant to Paragraph 5 earned or
accrued up through the day on which Employee is terminated.
(b) As used herein, the term "Without Cause" shall mean
termination of the Employee's employment by the Company for any reason other
than For Cause, Death or Disability.
(c) As used herein, the term "For Cause" shall mean:
(i) any material breach of this Agreement by Employee
that, in the case of a breach that may be cured or remedied, is not cured or
remedied to the reasonable satisfaction of the Company within 30 days after
notice is given by the Company to Employee, setting forth in reasonable detail
the nature of such breach;
(ii) Employee's failure to perform his duties and services
hereunder to the reasonable satisfaction of the Board of Directors or CEO of the
Company that, in the case of any such failure that may be cured or remedied, is
not cured or remedied to the reasonable satisfaction of the Company within 30
days after
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notice is given by the Company to Employee, setting forth in reasonable detail
the nature of such failure;
(iii) any material act, or material failure to act, by
Employee in bad faith and to the material detriment of the Company; or
(iv) commission by Employee of a material act involving
moral turpitude, dishonesty, unethical business conduct, or any other conduct
which significantly impairs the reputation of the Company, its subsidiaries or
affiliates.
(v) the conviction of the Employee of a felony, including
the plea of nolo contendere
11. Disclosure of Information and Restrictive Covenant
--------------------------------------------------
(a) Employee acknowledges that, by his employment, he has been and
will be in a confidential relationship with the Company and will have access to
confidential information and trade secrets of the Company, its subsidiaries and
affiliates, including, but not limited to, confidential information or trade
secrets belonging or relating to the Company, its subsidiaries, affiliates,
customers and/or clients or proprietary processes or procedures of the Company,
its subsidiaries, affiliates, customers and/or clients. Proprietary processes
and procedures shall include, but shall not be limited to, all information which
is known only to employees of the Company, its respective subsidiaries and
affiliates or others in a confidential relationship with the Company or its
respective subsidiaries and affiliates which relates to business matters.
Confidential information and trade secrets include, but are not limited to,
customer and client lists, price lists, marketing and sales strategies and
procedures, operational and equipment techniques, business plans and systems,
quality control procedures and systems, special projects and technological
research, including projects, research and reports for any entity or client or
any project, research, report or the like concerning sales or manufacturing or
new technology, employee compensation plans and any other information relating
thereto, and any other records, files, drawings, inventions, discoveries,
applications or processes which are not in the public domain (all the foregoing
shall be referred to herein as the "Confidential Information"). Employee agrees
that in consideration of the execution of this Agreement by the Company, he will
not use, or disclose to any third party, any of the Confidential Information,
other than as required to perform his services hereunder or as directed or
authorized by the Company's Board of Directors or President.
(b)
(i) Employee will not, at any time prior to the Expiration
Date, or if the Employee's employment shall terminate prior to the Expiration
Date, then for a period of eighteen (18) months after the Employee ceases to be
employed by the Company, engage in or participate in any business activity,
including, but not limited to, acting as a director, officer, employee, agent,
independent contractor, partner, consultant, licensor or licensee, franchiser or
franchisee, proprietor, syndicate member, or shareholder that operates a
business or activity which competes with any business or activity engaged in by
the Company.
(ii) Any time during his employment by the Company or after
the Employee ceases to be employed by the Company, divulge to any persons, firms
or corporations, other than the Company (hereinafter referred to collectively as
"third
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parties"), or use or allow or cause or authorize any third parties to use, any
such Confidential Information; and
(iii) At any time during his employment by the Company and
for a period of eighteen (18) months after the Employee ceases to be employed by
the Company, solicit or cause or authorize directly or indirectly to be
solicited, for or on behalf of the Employee or third parties, any business from
persons, firms, corporations or other entities who were at any time within one
(1) year prior to the cessation of his employment hereunder, customers of the
Company; and
(iv) At any time during his employment by the Company and
for a period of eighteen (18) months after the Employee ceases to be employed by
the Company, accept or cause or authorize directly or indirectly to be accepted,
for or on behalf of the Employee or third parties, any business from any such
customers of this Company; and
(v) At any time during his employment by the Company and
for a period of eighteen (18) months after the Employee ceases to be employed by
the Company, solicit or cause or authorize directly or indirectly to be
solicited for employment, for or on behalf of the Employee or third parties, any
persons who were at any time within one year prior to the cessation of his
employment hereunder, employees of the Company; and
(vi) At any time during his employment by the Company and
for a period of eighteen (18) months after the Employee ceases to be employed by
the Company, employ or cause or authorize directly or indirectly to be employed,
for or on behalf of the Employee or third parties, any such employees of the
Company; and
(vii) At any time during his employment by the Company and
for a period of eighteen (18) months after the Employee ceases to be employed by
the Company, compete with the Company in any fashion or work for, advise, be a
consultant to or an officer, director, agent or employee of or otherwise
associate with any person, firm, corporation or other entity which is engaged in
or plans to engage in a business or activity which competes with any business or
activity engaged in by the Company, or which is under development or in a
planning stage by the Company.
(c) Employee will not induce or persuade other employees of the
Company to join him in any activity prohibited by Paragraph 11 or 12.
(d) This Paragraph 11 and Paragraphs 12, 13, 14, 15, 20, 21 and 23
shall survive the expiration or termination of the Agreement for any reason.
(e) It is expressly agreed by Employee that the nature and scope of
each of the provisions set forth in Paragraphs 11 and 12 are reasonable and
necessary. If, for any reason, any aspect of these provisions as they apply to
Employee is determined by a court of competent jurisdiction to be unreasonable
or unenforceable, the provisions shall only be modified to the minimum extent
required to make the provisions reasonable and/or enforceable, as the case may
be. Employee acknowledges and agrees that his services are of a unique character
and expressly grants to the Company or any subsidiary, successor or assignee of
the Company, the right to enforce the provisions above through the use of all
remedies available at law or in equity, including, but not limited to,
injunctive relief.
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12. Company Property
----------------
(a) Any patents, inventions, discoveries, applications, processes
or designs, devised, planned, applied, created, discovered or invented by
Employee in the course of Employee's employment under this Agreement and which
pertain to any aspect of the Company's or its respective subsidiaries' or
affiliates' businesses shall be the sole and absolute property of the Company,
and Employee shall make prompt report thereof to the Company and promptly
execute any and all documents reasonably requested to assure the Company the
full and complete ownership thereof.
(b) All records, files, lists, including computer generated lists,
drawings, documents, equipment and similar items relating to the Company's
business which Employee shall prepare or receive from the Company shall remain
the Company's sole and exclusive property. Upon termination of the Employment
Term, or, if earlier, upon demand by the Company, Employee shall promptly return
to the Company all property of the Company in his possession. Employee further
represents that he will not copy or cause to be copied, print out or cause to be
printed out any software, documents or other materials originating with or
belonging to the Company. Employee covenants that, upon termination of his
employment with the Company, he will not retain in his possession any such
software, documents or other materials.
13. Remedy
------
It is mutually understood and agreed that Employee's services are special,
unique, unusual, extraordinary and of an intellectual character giving them a
peculiar value, the loss of which cannot be reasonably or adequately compensated
in damages in an action at law. Accordingly, in the event of any breach of this
Agreement by Employee, including, but not limited to, the breach of the
non-disclosure, non-solicitation and non-compete clauses under Paragraphs 11 and
12 hereof, the Company shall be entitled to equitable relief by way of
injunction or otherwise in addition to damages the Company may be entitled to
recover. Nothing herein shall be deemed to restrict any remedy available to
Employee for breach of the Agreement by the Company.
14. Representations and Warranties of Employee and the Company
----------------------------------------------------------
(a) In order to induce the Company to enter into this Agreement,
Employee hereby represents and warrants to the Company as follows: (i) Employee
has the legal capacity and unrestricted right to execute and deliver this
Agreement once to perform all of his obligations hereunder: (ii) the execution
and delivery of this Agreement by Employee and the performance of his
obligations hereunder will not violate or be in conflict with any fiduciary or
other duty, instrument, agreement, document, arrangement or other understanding
to which Employee is a party or by which he is or may be bound or subject; and
(iii) Employee is not a party to any instrument, agreement, document,
arrangement or other understanding with any person (other than the Company)
requiring or restricting the use or disclosure of any confidential information
or the provision of any employment, consulting or other services.
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(b) The Company hereby represents and warrants to Employee, as
follows: (i) the execution, delivery, and performance of this Agreement has been
duly authorized by all necessary corporate action of the Company; and (ii) this
Agreement constitutes the valid and binding obligation of the Company,
enforceable in accordance with its terms, except that such enforcement may be
subject to any bankruptcy, insolvency, reorganization, fraudulent transfer or
other laws, now or hereafter in effect, relating to or limiting creditors'
rights generally.
15. Notices
-------
All notices given hereunder shall be in writing and shall be deemed
effectively given when mailed, if sent by registered or certified mail, return
receipt requested, addressed to Employee at his address set forth on the first
page of this Agreement, and to the Company at its address set forth on the first
page of this Agreement, Attention: Xxxxxx Xxxxxxx, Chairman of the Board, with a
copy to Meritz & Xxxxx LLP, 0000 X Xxxxxx, Xxxxxxxxxx XX 00000, Attention:
Xxxxxxxx X. Xxxxx, or at such address as such party shall have designated by a
notice given in accordance with this Paragraph 15, or when actually received by
the party for whom intended, if sent by any other means.
16. Entire Agreement
----------------
This Agreement constitutes the entire understanding of the parties with
respect to its subject matter and no change, alteration or modification hereof
may be made except in writing signed by the parties hereto. Any prior or other
agreements, promises, negotiations or representations not expressly set forth in
this Agreement are of no force or effect.
17. Severability
------------
If any provision of this Agreement shall be unenforceable under any
applicable law, then notwithstanding such unenforceability, the remainder of
this Agreement shall continue in full force and effect.
18. Waivers, Modifications, Etc.
---------------------------
No amendment, modification or waiver of any provision of this Agreement
shall be effective unless the same shall be in writing and signed by each of the
parties hereto, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
19. Assignment
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Neither this Agreement, nor any of Employee's rights, powers, duties or
obligations hereunder, may be assigned by Employee. This Agreement shall be
binding upon and inure to the benefit of Employee and his heirs and legal
representatives and the Company and its successors and assigns. Successors of
the Company shall include, without limitation, any corporation or corporations
acquiring, directly or indirectly, all or substantially all of the assets of the
Company, whether by merger,
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consolidation, purchase, lease or otherwise, and such successor shall thereafter
be deemed "the Company" for the purpose hereof.
20. Applicable Law
--------------
This Agreement shall be deemed to have been made, drafted, negotiated and
the transactions contemplated hereby consummated and fully performed in the
State of New Jersey and shall be governed by and construed in accordance with
the laws of the State of New Jersey, without regard to the conflicts of law
rules thereof. Nothing contained in this Agreement shall be construed so as to
require the commission of any act contrary to law, and whenever there is any
conflict between any provision of this Agreement and any statute, law,
ordinance, order or regulation, contrary to which the parties hereto have no
legal right to contract, the latter shall prevail, but in such event any
provision of this Agreement so affected shall be curtailed and limited only to
the extent necessary to bring it within the legal requirements.
21. Jurisdiction and Venue
----------------------
It is hereby irrevocably agreed that all actions, suits or proceedings
between the Company and Employee arising out of, in connection with or relating
to this Agreement shall be exclusively heard and determined in, and the parties
do hereby irrevocably submit to the exclusive jurisdiction of the appropriate
New Jersey trial court located in the county in which the Company's principal
offices are located, or the Federal District Court in the district in which the
Company's principal offices are located. The parties also agree that a final
judgment in any such action, suit or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. The parties hereby unconditionally waive any objection which
either of them may now or hereafter have to the venue of any such action, suit
or proceeding brought in any of the aforesaid courts, and waive any claim that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
22. Full Understanding
------------------
Employee represents and agrees that he fully understands his right to
discuss all aspects of this Agreement with his private attorney, that to the
extent, if any, that he desired, he availed himself of this right, that he has
carefully read and fully understands all of the provisions of this Agreement,
that he is competent to execute this Agreement. that his agreement to execute
this Agreement has not been obtained by any duress and that he freely and
voluntarily enters into it, and that he has read this document in its entirety
and fully understands the meaning, intent and consequences of this document
which is that it constitutes an agreement of employment.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date written below.
SpeechSwitch, Inc. XXXXX XXXX
By:___________________________ By:_________________________
Title:__________________________ Dated:______________________
Dated:______________________
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