EXHIBIT 2.3.3
EMPLOYMENT AGREEMENT
This Employment Agreement is entered into as of the 5th day of August,
1999, among Voxcom Holdings, Inc., doing business as MAX Internet
Communications, Inc. (hereinafter referred to as "Employer") and Xxxxxx Xxxx
(hereinafter referred to as "Employee"),
In consideration of the mutual promises hereinafter set forth, the
parties hereto agree as follows:
1. Employment. Employer agrees to employ Employee and Employee
agrees to serve Employer, upon the terms and conditions hereafter set forth.
2. Term. The employment of Employee hereunder and this Employment
Agreement shall commence effective the date hereof and shall continue in effect
for a period of 18 months, unless terminated pursuant to Section 7 hereof At the
end of the term, the parties may agree to wend this Agreement for successive one
year terms,
3. Duties. During the term of this Agreement, Employee shall be
engaged as a senior executive officer with the title of Chief Marketing Officer
of Employer. Employee's powers and duties in those capacities shall be those set
forth in Exhibit A and as set by the Board of Directors, President and Chairman
of Employer. The Employee shall report to the President, Chairman and the Board
of Employer. If Employee is elected or appointed with the Employee's consent to
an office with any of Employer's subsidiaries or affiliates during the term of
this Agreement, the Employee will serve in such capacity or capacities without
additional compensation.
4. Extent of Services. During the term of this Agreement, Employee
shall devote substantially his entire working time, attention, and energies to
the business of Employer, and shall not during the term of service be actively
engaged in any other business activities. However, this shall not be construed
as preventing Employee from investing the Employee's personal assets in such
form or manner as may require occasional or incidental services on the part of
Employee in the management, conservation and protection of such investments and
provided that such investments cannot be construed as being, competitive or in
conflict with the business of Employer. However. nothing herein shall restrict
Employee from making investments in securities of publicly traded companies not
comprising more than 5% of securities outstanding.
5. Compensation.
5.1. Base Salary. Employer wil pay Employee during the Employee's
term of service hereunder, as compensation for the Employee's services, the sum
of US$20,833 per month (sometimes hereafter referred to as the "Base Salary"),
payable in semi-monthly installments in accordance with the general practices of
the Employer. Such base salary shall be reviewed and may be increased at each
annual review by the Employer of the Employee's performance and salary.
5.2. Benefits. The Employee shall be entitled to the same benefits
generally provided to other employees of Employer of comparable rank and
responsibility in accordance with the policies of the Employer from time to
time. These are to include, but not be limited to, health insurance for
Employee; three weeks paid vacation pursuant to the Employees standard policy;
relocation costs including moving expense, travel costs to search for new
housing, and 90 days temporary housing reimbursed at up to $2,500 per month; and
an Employer-provided attorney to assist Employee with a work visa.
5.3 Stock Incentive. Employer shall grant to Employee and issue
shares of its unregistered Common Stock, based upon the following formulae:
5.3.1.Employer will grant and issue Employee the following number of
shares upon the Employer's achievement of the following sales of Employer's
products up to a maximum global budgeted sales figure of US$100 million:
Aggregate sales of products
during 18 Month Period
beginning with first day of
month following commence-
ment of employment Number of Shares
--------------------------- ----------------
US$ 50 million 10,000
62.5 million 10,000
75 million 10,000
82.5 million 10,000
100 million 10,000
5.3.2.Employer will additionally grant to Employee shares of its
unregistered common stock in the amount of 10,000 shares upon commencement of
employment and 10,000 shares on each of the first four (4) anniversary dates of
such commencement upon which Employee is employed by Employer.
6. Expenses. During the term of employment provided for herein,
Employer shall pay or reimburse Employee, in accordance with its standard
policy, upon submission of vouchers by the Employee for all reasonable expenses
incurred by the Employee in the interest of Employer's business.
7. Termination.
7.1. Termination Events. Subject to the provisions of Paragraph 7.2
of this Section, this Agreement shall terminate:
7.1.1.Upon death of Employee.
0.0.0.Xx the option of the Employer if Employee shall become disabled
and remain disabled for a period of six (6) months. Disability shall be defined
as Employer's inability through illness or other cause to perform his normal
work load as measured by the twelve (12) months preceding the commencement of
such disability. During such disability, Employee shall be compensated in
accordance with Employer's standard policy regarding disability.
7.1.3.Upon mutual agreement.
7.1.4.From the period commencing six months following the date of
commencement of employment, by not less than 90 days notice in writing by the
Employer or Employee to the other.
7.2. Consequences of Termination. Upon termination for any reason set
forth above, all base salary payments under Section 5.1 shall be prorated and
paid to the following dates, and all further payment obligations to Employee
hereunder shall cease.
7.2.1 For termination under 7.1.1, to the date of death.
7.2.2 For termination under 7.1.2, to the last day of the six month
disability period.
7.2.3 For termination under 7.1.3, to the date mutually agreed.
7.2.4 For termination under 7.1.4, to the last day of the notice
period.
8. Trade Secret and Confidential Information. During the term of
this Agreement, Employee will have access to confidential information and
business secrets specific to and regularly used in the operation of the business
of Employer. Employee acknowledges that such information constitutes valuable
and confidential information of the Employer, Employee shall not disclose any of
the aforesaid private company secrets, directly or indirectly, nor use them in
any way, either during the term of this Agreement or after termination of
employment. All files, records, electronic and magnetic files, documents,
specifications, equipment and similar information relating to the business of
Employer, whether prepared by Employee or otherwise coming into Employee's
possession shall remain the exclusive property of Employer and shall not be
removed from the premises of Employer except as shall be necessary for Employee
to perform Employee's duties under this Agreement. Upon termination of this
Agreement for any reason, Employee will deliver all such materials in his
possession and all copies thereof to Employer.
9. Restrictive Covenants.
9.1 Employee acknowledges that during the term of this Agreement
the Employer has agreed to provide to him, and he shall receive from the
Employer, special training and knowledge. Employee acknowledges that included in
the special knowledge received is the confidential information identified in
Section 8. Employee acknowledges that this confidential information is valuable
to the Employee and, therefore, its protection and maintenance constitutes
legitimate interest to be protected by the Employer by the enforcement of this
covenant not to compete. Therefore, Employee agrees that during the term of this
Agreement and for a period commencing upon the termination of the term of
Employee's employment hereunder and ending upon the second anniversary thereof,
unless otherwise extended pursuant to the terms hereof, Employee will not,
directly or indirectly, either as an employee, employer, consultant, agent,
principal, partner, stockholder, corporate officer, director, or in any other
individual or representative capacity, engage or participate in any business
that is in competition with the video Internet communications business of the
Employer as it exists upon the termination of the term of Employee's employment
hereunder, anywhere within the State of Texas. Employee represents to the
Employer that the enforcement of the restriction contained in this Section 9
would not be unduly burdensome to Employee. Employee further represents and
acknowledges that Employee is willing and able to compete in other geographical
areas not prohibited by this Section 9.
9.2 Employee agrees that a breach or violation of this covenant not
to compete by such Employee shall entitle the Employer, as a matter of right, to
an injunction issued by any court of competent jurisdiction, restraining any
further or continued breach or violation of this covenant. Such right to an
injunction shall be cumulative and in addition to, and not in lieu of, any other
remedies to which the Employer may show itself justly entitled. Further, during
any period in which Employee is in breach of this covenant not to compete, the
time period of this covenant shall be extended for an amount of time that
Employee is in breach hereof.
9.3 In addition to the restrictions set forth in paragraph (a) o
this Section 9, Employee shall not for a period commencing upon the termination
of the term of Employee's engagement hereunder and ending upon the second
anniversary thereof either directly or indirectly, (i) solicit or attempt to
solicit any of the customers of the video Internet communications business of
Employer on whom Employee called or with whom Employee became acquainted during
Employee's association with the Employer, whether for Employee or for any other
person, firm or corporation within the State of Texas or (ii) recruit or attempt
to recruit, directly or by assisting others, any other employee of the Employer
or any of its affiliates.
9.4 The representation and covenants contained in this Section 9 on
the part of Employee will be construed as ancillary to and independent of any
other provision of this Agreement, and the existence of any claim or cause of
action of Employee against the Employer or any officer, director, or shareholder
of the Employer or any officer, director, or shareholder of the Employer,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by the Employer of the covenants of the Employee
contained in this Section 9. In addition, the provisions of this Section 9 shall
continue to be binding upon Employee in accordance with its terms,
notwithstanding the termination of Employee's engagement hereunder for any
reason.
10. General Provisions.
10.1 Notice. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and sent by certified mail by
Employer to the residence of Employee, or by Employee to Employer's principal
office.
10.2. Assignability. This Agreement and the rights, and benefits
hereunder shall not be assignable or in any way alienated by Employee. Employer
shall have the right of assignment and transfer of its rights hereunder to any
successor to the majority of its assets and any such successor shall be bound by
the terms hereof.
10.3. Waiver of Breach. The waiver by Employer or Employee of a breach
of any provisions of this Agreement by the other shall not operate or be
construed as a waiver of any subsequent breach.
10.4. Entire Agreement. This instrument contains the entire agreement
of the parties. It may not be changed orally, but only by an agreement in
writing, signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
10.5. Governing Law. This Employment Agreement shall be governed by the
laws of the State of Texas.
10.6 Arbitration. Any controversy between the parties to this
Agreement involving the construction or application of any of the terms,
covenants or conditions of this Agreement or arising out of any section hereof
or any condition in connection with the termination of employment, shall, on the
written request of one party served on the other, be submitted to binding
arbitration in Dallas, Texas, and such arbitration shall comply with and be
governed by the Commercial Arbitration Rules of the American Arbitration
Association. Each party hereto shall appoint one person as an arbitrator within
30 days after service of the request for arbitration, and the two arbitrators so
chosen shall select a third impartial arbitrator with fifteen days of the date
on which the second arbitrator is selected. The arbitrators shall decide all
questions presented to them by majority vote. The decision of a majority of the
arbitrators shall be final and conclusive on all parties hereto. The expenses of
arbitration conducted pursuant to this Section shall be borne by the parties in
such proportions as the arbitrators may decide, All parties shall be entitled to
be represented by counsel of their choosing throughout the arbitration
proceedings.
10.7. Consulting Agreement. Pending receipt of Employee's H-I work
visa, this Agreement shall be deemed to be a consulting contract and shall be
converted automatically into an employment agreement upon receipt of such visa.
IN WITNESS WHEREOF, Employer has caused this Employment Agreement to be
executed in its corporate name by its corporate officers thereunto duly
authorized, and Employee has executed this Employment Agreement.
EMPLOYEE:
/s/ Xxxxxx Xxxx
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Xxxxxx Xxxx
EMPLOYER:
VOXCOM HOLDINGS, INC.
By: /s/ Xxxxxx X. XxXxxxxx
---------------------------------
Xxxxxx X. XxXxxxxx, President
