EXHIBIT 10.2
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") dated and effective as of
April 2, 2003 (the "Effective Date") is by and between US DATAWORKS, INC., a
Nevada corporation (the "Company"), and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇▇▇"). In
consideration of the mutual covenants and promises contained herein, the parties
agree as follows.
WHEREAS, ▇▇▇▇▇▇▇▇▇▇ has been employed by the Company for a number of
years, and the services of ▇▇▇▇▇▇▇▇▇▇, his managerial and financial experience,
and his knowledge of the affairs of the Company are of great value to the
Company; and
WHEREAS, the Company deems it essential that it have the advantage of
the services of ▇▇▇▇▇▇▇▇▇▇ for a period extending beyond his present employment
agreement, and desires to enter into a continuing agreement of employment with
him, and to provide ▇▇▇▇▇▇▇▇▇▇ with compensation for past contributions to the
Company; and ▇▇▇▇▇▇▇▇▇▇ desires to enter into such an agreement with the Company
upon the terms and conditions stated hereunder.
ARTICLE 1
GENERAL PROVISIONS
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Section 1.1 EMPLOYMENT. The Company hereby employs ▇▇▇▇▇▇▇▇▇▇, and
▇▇▇▇▇▇▇▇▇▇ accepts such employment by the Company upon the terms and conditions
hereof.
Section 1.2 TERM. Subject to earlier termination as specifically set
forth herein, the initial term of this Agreement shall be three (3) years (the
"Term") commencing on the Effective Date. The Term shall be extended
automatically without further action by either party for successive one (1) year
terms, unless either party shall have served ninety (90) days prior written
notice upon the other party that this Agreement shall terminate.
Section 1.3 TERMINATION. ▇▇▇▇▇▇▇▇▇▇'▇ employment and this Agreement
shall terminate upon the earliest to occur of any of the following events (the
actual date of such termination being referred to herein as the "Termination
Date"):
(a) Pursuant to Section 1.2.
(b) In the event of ▇▇▇▇▇▇▇▇▇▇'▇ death or disability as set forth
in Section 3.8.
(c) Termination of ▇▇▇▇▇▇▇▇▇▇'▇ employment by the Company for
cause without any prior notice (except as specifically set
forth below), upon the occurrence of any of the following
events (each of which shall constitute "Cause"):
(i) any embezzlement or wrongful diversion of funds of
the Company or any affiliate of the Company by
▇▇▇▇▇▇▇▇▇▇;
(ii) gross malfeasance by ▇▇▇▇▇▇▇▇▇▇ in the conduct of
▇▇▇▇▇▇▇▇▇▇'▇ duties;
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(iii) breach of this Agreement and, if such breach is
capable of being cured, as determined by the Board of
Directors of the Company (the "Board of Directors"),
failure of ▇▇▇▇▇▇▇▇▇▇ to cure such breach after
notice and reasonable opportunity to cure such
breach; or
(iv) gross neglect by ▇▇▇▇▇▇▇▇▇▇ in carrying out
▇▇▇▇▇▇▇▇▇▇'▇ duties.
(d) Termination of ▇▇▇▇▇▇▇▇▇▇'▇ employment by the Company
at any time without Cause.
(e) Termination by ▇▇▇▇▇▇▇▇▇▇ of his employment at any
time.
Section 1.4 TERMINATION OBLIGATIONS; RETURN OF COMPANY PROPERTY. Upon
termination of this Agreement, ▇▇▇▇▇▇▇▇▇▇ shall promptly return all Company
property.
ARTICLE 2
POSITION AND DUTIES; OTHER BUSINESS ACTIVITIES
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Section 2.1 POSITION. ▇▇▇▇▇▇▇▇▇▇ shall be employed as Senior Vice
President-Chief Technology Officer of the Company and report to the President.
▇▇▇▇▇▇▇▇▇▇ shall serve the Board of Directors in an advisory capacity, at the
pleasure of the Board of Directors. In the event the Board of Directors is
enlarged to nine (9) directors, the Board of Directors shall use its best
efforts to cause ▇▇▇▇▇▇▇▇▇▇ to be elected to the Board.
Section 2.2 DUTIES; FULL ATTENTION TO BUSINESS. ▇▇▇▇▇▇▇▇▇▇ shall
perform such services for the Company, that reasonably serve the purpose of this
Agreement and/or meet the needs of the Company, as may be reasonably assigned to
him by the Chief Executive Officer and the President and that are consistent
with the position ▇▇▇▇▇▇▇▇▇▇ holds. ▇▇▇▇▇▇▇▇▇▇ shall devote his full business
time, energies, interest, abilities and productive efforts to the business of
the Company. Without the Company's written consent, ▇▇▇▇▇▇▇▇▇▇ shall not render
any kind of employee-type or consulting services to others for compensation and,
in addition, shall not engage in any activity which conflicts or interferes with
his performance of duties hereunder.
Section 2.3 COVENANT NOT TO COMPETE DURING TERM. During the Term,
▇▇▇▇▇▇▇▇▇▇ shall comply in all respects with the Company's written policies with
respect to conflicts of interest. ▇▇▇▇▇▇▇▇▇▇ shall not, without the prior
written consent of the Board of Directors, engage in or be interested, directly
or indirectly, in any business or operation competitive with the Company. For
the purpose of this paragraph, ▇▇▇▇▇▇▇▇▇▇ shall be deemed to be interested in a
business or operation which is competitive with the Company if ▇▇▇▇▇▇▇▇▇▇ is a
holder of 5% or more of the issued and outstanding ownership interests in such
business or operation, or serves as a director, officer, employee, agent,
partner, individual proprietor, lender, consultant, or independent contractor of
such business or operation.
Section 2.4 NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. ▇▇▇▇▇▇▇▇▇▇
acknowledges that in connection with his employment by the Company or its
affiliates, he has and may acquire
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or learn "Confidential Information" of the Company by virtue of a relationship
of trust and confidence between ▇▇▇▇▇▇▇▇▇▇ and the Company. ▇▇▇▇▇▇▇▇▇▇ warrants
and agrees that during the Term he shall not disclose to anyone (other than to
officers of the Company or to such other persons as such officers may
designate), or use, except in the course of his employment with the Company or
its affiliates, any Confidential Information acquired by him in the course of or
in connection with his employment. As used herein, the term "Confidential
Information" shall include, but not be limited to: all information of any type
or kind, whether or not reduced to a writing and whether or not conceived,
originated, discovered or developed in whole or in part by ▇▇▇▇▇▇▇▇▇▇, which is
directly related to the Company, its operations, policies, agreements with third
parties, its financial affairs and related matters, including business plans,
strategic planning information, product information, purchase and sales
information and terms, supplier negotiation points, styles and strategies,
contents and terms of contracts between the Company and suppliers, advertisers,
vendors, contact persons, terms of supplier and/or vendor contracts or
particular transactions, potential supplies and/or vendors, or other related
data; marketing information such as but not limited to, prior, ongoing or
proposed marketing programs, presentations, or agreements by or on behalf of the
Company, pricing information, customer bonus programs, marketing tests and/or
results of marketing efforts, computer files, lists and reports, manuals and
memos pertaining to the business of the Company, lists or compilations of vendor
and/or supplier names, addresses, phone numbers, requirements and descriptions,
contract information sheets, compensation requirements or terms, benefits,
policies, and any other financial information whether about the Company,
entities related or affiliated with the Company or other key information
pertaining to the business of the Company, including but not limited to all
information which is not generally available to or known in the information
services industry (or is available only as a result of an unauthorized
disclosure) and is treated by the Company as "Confidential Information" during
the term of this Agreement, regardless of whether or not such Information is a
"trade secret" as otherwise defined by applicable law unless such information is
in the public domain.
Section 2.5 NO SOLICITATION OF EMPLOYEES. ▇▇▇▇▇▇▇▇▇▇ specifically
agrees that during the Term and for a period of two (2) years after his
termination of employment with the Company, ▇▇▇▇▇▇▇▇▇▇ shall not, directly or
indirectly, either for himself or for any other person, firm, corporation or
legal entity, solicit any individual then employed by the Company to leave the
employment of the Company.
Section 2.6 OWNERSHIP OF WORK PRODUCT AND IDEAS. Any discoveries,
inventions, patents, materials, licenses and ideas applicable to the industry or
relating to ▇▇▇▇▇▇▇▇▇▇'▇ services for the Company or its affiliates, whether or
not patentable or copyrightable, created by ▇▇▇▇▇▇▇▇▇▇ during his employment by
the Company or its affiliates ("Work Product") and all business opportunities
within the industry ("Opportunities") introduced to ▇▇▇▇▇▇▇▇▇▇ by the Company or
its affiliates will be owned by the Company, and ▇▇▇▇▇▇▇▇▇▇ will have no
personal interest in such, except to the extent that the Company allows
▇▇▇▇▇▇▇▇▇▇ to invest or participate in or have other rights to such Work Product
or Opportunities. ▇▇▇▇▇▇▇▇▇▇ will, in such connection, promptly disclose any
such Work Product and Opportunities to the Company and, upon request of the
Company, will assign to the Company all right in such Work Product and
Opportunities.
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ARTICLE 3
COMPENSATION; BENEFITS
----------------------
Section 3.1 SALARY. The Company shall pay ▇▇▇▇▇▇▇▇▇▇ Six Thousand Two
Hundred Fifty and NO/100 Dollars ($6,250.00) on a semi-monthly basis, for an
annualized base salary ("Base Salary") of One Hundred Fifty Thousand and NO/100
Dollars ($150,000.00). Beginning with the first anniversary of the date of the
Agreement and for each subsequent year of employment (or any portion of any such
year), ▇▇▇▇▇▇▇▇▇▇ shall be entitled to a base salary review by the Company to
determine if any increase to base salary is warranted as a result of
performance.
Section 3.2 BONUS. In addition to the ▇▇▇▇▇▇▇▇▇▇'▇ base salary,
▇▇▇▇▇▇▇▇▇▇ shall be eligible to receive a bonus ("Bonus") for each fiscal year
equal to (a) 3% of the Company's EBITDA, as determined by the Board of
Directors, but not in excess of 1.5 times the amount of ▇▇▇▇▇▇▇▇▇'▇ Base Salary
paid to him during such fiscal year, plus (b) such additional amount based on
▇▇▇▇▇▇▇▇▇'▇ performance as may be determined by the Board of Directors in its
sole discretion. Any Bonus owing to ▇▇▇▇▇▇▇▇▇ shall be paid within thirty (30)
days following the filing of the Company's annual report on Form 10-K for the
applicable fiscal year.
Section 3.3 PAID VACATION. ▇▇▇▇▇▇▇▇▇▇ shall be entitled to three weeks
of paid vacation during each year of service or such longer amount of vacation
time as ▇▇▇▇▇▇▇▇▇▇ and the Compensation Committee of the Board of Directors
shall mutually agree upon.
Section 3.4 STOCK OPTIONS.
(a) Subject to approval of the Compensation Committee of the Board
of Directors, the Company will grant to ▇▇▇▇▇▇▇▇▇▇ (i) an
option to purchase 1,775,000 shares of common stock of the
Company under the Company's 2000 Stock Option Plan (the
"Plan"), which shall be intended to qualify as an incentive
stock option to the maximum extent permitted under Section 422
of the Internal Revenue Code of 1986, as amended, and (ii)
subject to compliance with the limitations of the American
Stock Exchange applicable to grants of options to officers
without stockholder approval, an option to purchase an
additional 2,900,000 shares outside the Plan, half of which
(1,450,000) will be granted as soon as practicable following
the Effective Date and the other half of which (1,450,000)
will be granted one year later. Subject to approval of the
Compensation Committee, the Company will also grant to
▇▇▇▇▇▇▇▇▇▇ an option to purchase an additional 325,000 shares
under the Plan, provided that the Board of Directors and the
stockholders of the Company have approved an increase in the
number of shares authorized for issuance under the Plan to 15
million shares and a sufficient increase in the number of
shares for which options may be granted to an individual under
the Plan (the "Plan Amendment"). All such options will have an
exercise price per share equal to the fair market value of the
Company's common stock as of the date of grant. If, by reason
of the limitations of the American Stock Exchange applicable
to grants of options to officers without stockholder approval,
the Company cannot grant an option to purchase all 2,900,000
shares outside the Plan, then the Company ▇▇▇▇
▇▇▇▇ 4 of 11
grant an option to purchase such shares that are in excess of
the American Stock Exchange limitations under the Plan
following the Plan Amendment, subject to approval of the
Compensation Committee. Each option shall be subject to the
terms and conditions of the Plan (or substantially equivalent
terms if the option is granted outside the Plan) and an option
agreement to be entered into between the Company and
▇▇▇▇▇▇▇▇▇▇, in a form approved by the Compensation Committee
of the Board of Directors. Each option agreement shall provide
that the option shall have a ten year term (subject to earlier
termination in connection with termination of employment).
(b) The options shall vest and become exercisable, subject to
continued employment, as follows:
(i) The option described in Section 3.4(a)(i) for
1,775,000 shares shall vest as to 50% of the shares
on the date of grant of such option, and as to the
remaining 50% on the first anniversary of the
Effective Date of this Agreement,
(ii) The option described in Section 3.4(a)(ii) for
1,450,000 shares, to be granted following the
Effective Date, shall vest as to 50% of the shares on
March 31, 2005, and as to the remaining 50% of the
shares on ▇▇▇▇▇ ▇▇, ▇▇▇▇,
(▇▇▇) The option described in Section 3.4(a)(ii) for
1,450,000 shares, to be granted one year following
the Effective Date, shall vest as to 50% of the
shares on March 31, 2005, and as to the remaining 50%
of the shares on March 31, 2006, and
(iv) The option described in Section 3.4(a) for 325,000
shares shall vest as to 50% of the shares on March
31, 2005, and as to the remaining 50% of the shares
on March 31, 2006,
in each case to become fully vested and exercisable upon a
Change in Control as defined in the Plan.
(c) ▇▇▇▇▇▇▇▇▇▇ shall be eligible to receive additional grants of
options pursuant to the Plan in the sole discretion of the
Compensation Committee of the Board of Directors.
(d) If the Company is subject to a Change in Control as defined in
the Plan during the Term but prior to the grant of the option
described in Section 3.4(a)(ii) for 1,450,000 shares (to be
granted one year following the Effective Date), or the option
described in Section 3.4(a) for 325,000 shares (to be granted
following the Plan Amendment), ▇▇▇▇▇▇▇▇▇ shall be entitled to
a cash bonus equal to the excess of the fair market value of
the shares for which such options were not granted as of the
date of the Change in
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Control, over the fair market value of such shares as of April
2, 2003. Any payments due hereunder shall be paid within sixty
(60) days of the date of the Change in Control.
Section 3.5 RESERVED.
Section 3.6 OTHER BENEFITS. During the Term, ▇▇▇▇▇▇▇▇▇▇ shall be
entitled to participate in present and future employee benefit plans which are
available to the Company's employees, subject to eligibility requirements
thereunder. The Company shall also pay $7,500 to ▇▇▇▇▇▇▇▇▇▇ as a signing bonus
within ten (10) days following the closing by the Company of a debt financing in
the amount of at least $1.5 million following execution of this Agreement (a
"Funding Event").
Section 3.7 REIMBURSEMENT OF EXPENSES. The Company shall provide
▇▇▇▇▇▇▇▇▇▇ with a corporate charge card to be used for reasonable business
purposes only and shall promptly reimburse ▇▇▇▇▇▇▇▇▇▇ for all reasonable
business expenses incurred by him in the performance of his duties hereunder
subject to and in accordance with the Company's business expense reimbursement
policies as in effect from time to time.
Section 3.8 DISABILITY OR DEATH. If the Board of Directors determines,
on the basis of professional medical advice, that ▇▇▇▇▇▇▇▇▇▇ has become unable
to substantially perform his duties under this Agreement due to illness or
mental or physical disability, and that such failure or inability has continued
or is reasonably expected to continue for any consecutive six-month period, the
Company shall have the option to terminate this Agreement by giving written
notice to ▇▇▇▇▇▇▇▇▇▇ thereof and the basis therefor at least 30 days prior to
the effective date of termination. This Agreement shall also terminate
immediately upon ▇▇▇▇▇▇▇▇▇▇'▇ death. If ▇▇▇▇▇▇▇▇▇▇'▇ employment with the Company
is terminated pursuant to this Section 3.8, the Company shall pay ▇▇▇▇▇▇▇▇▇▇ the
salary, bonuses and commissions which are earned but unpaid as of the date of
termination. The Board of Directors shall have discretion to determine the
amount, if any, of Bonus which ▇▇▇▇▇▇▇▇▇▇ has earned prior to termination of
employment during a fiscal year.
Section 3.9 SEVERANCE.
(a) If the Company terminates ▇▇▇▇▇▇▇▇▇▇'▇ employment other than
for Cause pursuant to Section 1.3(d), and other than by reason
of death or Disability pursuant to Section 3.8, or if
▇▇▇▇▇▇▇▇▇▇ resigns within ten (10) days following a material
diminution in his title within six (6) months following a
Change of Control then subject to ▇▇▇▇▇▇▇▇▇▇'▇ continuing
obligations under Sections 2.4 and 2.5 and in consideration of
the execution, delivery and effectiveness of a general release
of claims in a standard form approved by the Company, the
Company shall pay to ▇▇▇▇▇▇▇▇▇▇ a lump sum of two (2) times
▇▇▇▇▇▇▇▇▇▇'▇ current Base Salary in cash within fifteen (15)
days after the date of termination (or, if later, upon the
effectiveness of the general release following any applicable
revocation period) and shall vest 100% of ▇▇▇▇▇▇▇▇▇▇'▇ then
remaining unvested options granted in accordance with this
Agreement, in addition to other amounts payable from qualified
plans, nonqualifed retirement plans, and deferred compensation
plans, which amounts shall be paid in accordance with the
terms of such plans.
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(b) If ▇▇▇▇▇▇▇▇▇▇ resigns within ten (10) days following a
material diminution in his title by the Board of Directors of
the Company, other than in connection with a Change of Control
or a termination of his employment for Cause or as a result of
death or Disability pursuant to Section 3.8, then subject to
▇▇▇▇▇▇▇▇▇▇'▇ continuing obligations under Sections 2.4 and 2.5
and in consideration of the execution, delivery and
effectiveness of a general release of claims in a standard
form approved by the Company, the Company shall vest 50% of
▇▇▇▇▇▇▇▇▇▇'▇ then remaining unvested options granted in
accordance with this Agreement, and ▇▇▇▇▇▇▇▇▇▇'▇ entitlement
to other amounts payable from qualified plans, nonqualified
retirement plans, and deferred compensation plans shall be
determined in accordance with the terms of such plans.
(c) If the Company terminates ▇▇▇▇▇▇▇▇▇▇'▇ employment for Cause,
or if ▇▇▇▇▇▇▇▇▇▇ resigns (other than pursuant to Section
3.9(b) above), then ▇▇▇▇▇▇▇▇▇▇ shall only be entitled to be
paid his accrued, unpaid Base Salary through the effective
date of his termination of employment and his entitlement to
other amounts payable from qualified plans, nonqualified
retirement plans, and deferred compensation plans shall be
determined in accordance with the terms of such plans.
(d) No severance benefits shall be provided pursuant to Sections
3.9(a) or (b) if ▇▇▇▇▇▇▇▇▇▇'▇ employment is terminated by
reason of expiration or non-renewal of this Agreement for any
reason.
Section 3.10 EXCESS PARACHUTE PAYMENTS.
(a) If there is a "change of control" of the Company within the
meaning of Section 280G of the Internal Revenue Code of 1986,
as amended (the "Code"), a portion of the benefits to which
▇▇▇▇▇▇▇▇▇▇ is entitled under this Agreement could be
characterized as "excess parachute payments" within the
meaning of Section 280G of the Code. The parties hereto
acknowledge that the protections set forth in this Section
3.10 are important, and it is agreed that ▇▇▇▇▇▇▇▇▇▇ should
not have to bear the full burden of the excise tax that might
be levied under Section 4999 of the Code or any similar
provision of federal, state of local law, in the event that
any portion of the benefits payable to ▇▇▇▇▇▇▇▇▇▇ pursuant to
this Agreement or the other incentive plans of the Company are
treated as an excess parachute payment. The parties,
therefore, have agreed as set forth in this Section 3.10.
(b) Anything in this Agreement to the contrary notwithstanding, if
it shall be determined that any payment or distribution
(including income recognized by ▇▇▇▇▇▇▇▇▇▇ upon the early
vesting of restricted property or upon the exercise of options
whose exercise date has been accelerated) by the Company or
any other Person to or for the benefit of ▇▇▇▇▇▇▇▇▇▇ (whether
paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise, but determined
without regard to any additional payments required under this
Section 3.10 (a "Payment") would be subject to the excise tax
imposed by Section 4999 of the
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Code or any similar provision of any federal, state or local
law or any interest or penalties are incurred by ▇▇▇▇▇▇▇▇▇▇
with respect to such excise tax (such excise tax, together
with any such interest and penalties, are hereinafter
collectively referred to as the "Excise Tax"), then the
Company shall pay an additional payment, not to exceed the
amount of ▇▇▇▇▇▇▇▇▇▇'▇ then current Base Salary in the
aggregate (a "Gross-Up Payment"), in an amount such that after
payment by ▇▇▇▇▇▇▇▇▇▇ of all taxes (including any interest or
penalties imposed with respect to such taxes), including,
without limitation, any income taxes (and any interest and
penalties imposed with respect thereto) and Excise Tax imposed
on the Gross-Up Payment, ▇▇▇▇▇▇▇▇▇▇ retains an amount of the
Gross-Up Payment equal to fifty percent (50%) of the Excise
Tax imposed on the Payments. ▇▇▇▇▇▇▇▇▇▇ will bear the cost of
the remaining fifty percent (50%) until the aggregate Gross-Up
Payments from the Company have reached the amount of
▇▇▇▇▇▇▇▇▇▇'▇ then current Base Salary, and will thereafter
bear all additional taxes, interest or penalties.
(c) In the event of any dispute as to the applicability or amount
of any Gross-Up Payment, all determinations required to be
made under this Section 10, including whether and when a
Gross-Up Payment is required and the amount of such GrossUp
Payment and the assumptions to be utilized in arriving at such
determination, shall be made by the independent public
accounting firm regularly employed by the Company (the
"Accounting Firm") which shall provide detailed supporting
calculations both to the Company and to ▇▇▇▇▇▇▇▇▇▇ within 15
business days after the receipt of notice from ▇▇▇▇▇▇▇▇▇▇ that
there has been a Payment, or such earlier time as is requested
by the Company. All fees and expenses of the Accounting Firm
will be borne by the Company. If the Accounting Firm
determines that no Excise Tax is payable by ▇▇▇▇▇▇▇▇▇▇, it
shall furnish ▇▇▇▇▇▇▇▇▇▇ with a written statement that failure
to report the Excise Tax on ▇▇▇▇▇▇▇▇▇▇'▇ applicable federal
income tax return would not result in the imposition of a
negligence or similar penalty. Any determination by the
Accounting Firm shall be binding on the Company and ▇▇▇▇▇▇▇▇▇▇
unless and until a final determination is received from the
Internal Revenue Service indicating a contrary result. As a
result of uncertainty in the application of Section 4999 of
the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up
Payments may not have been made by the Company that should
have been made ("Underpayment"), consistent with the
calculations required to be made hereunder. If ▇▇▇▇▇▇▇▇▇▇
thereafter is required to make a payment of any Excise Tax,
the Accounting Firm shall determine the amount of the
Underpayment that has occurred and any such Underpayment shall
be promptly paid by the Company to or for the benefit of
▇▇▇▇▇▇▇▇▇▇, consistent with the maximum limitation stated in
this Section 3.10. In the event it is determined by the
Accounting Firm that the Gross Payments previously made by the
Company exceeded the limitations stated in this Section 3.10,
upon written notice from the Company, accompanied by a copy of
the Accounting Firm's calculation of same, the amount of such
overpayment shall be promptly paid by ▇▇▇▇▇▇▇▇▇▇ to the
Company.
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ARTICLE 4
MISCELLANEOUS PROVISIONS
------------------------
Section 4.1 ENTIRE AGREEMENT. This Agreement contains the entire
Agreement between the Parties and supersedes all prior oral and written
Agreements, understandings, commitments, or practices between the Parties with
respect to the subject matter hereof, including the Employment Agreement dated
April 2, 2001, by and between ▇▇▇▇▇▇▇▇▇▇ and the Company. Other than as
expressly set forth herein, ▇▇▇▇▇▇▇▇▇▇ and the Company acknowledge and represent
that there are no other promises, terms, conditions or representations (verbal
or written) regarding any matter relevant hereto. No supplement, modification,
or amendment of any term, provision or condition of this Agreement shall be
binding or enforceable unless evidenced in writing and executed by the parties.
The provisions of Sections 2.3, 2.4, 2.5 and 2.6 shall survive termination of
this Agreement.
Section 4.2 APPLICABLE LAW. This Agreement shall be governed
exclusively by and construed in accordance with the laws of the State of Texas,
notwithstanding choice of law provisions thereof; and the venue of any
litigation commenced hereunder shall be Houston, Texas.
Section 4.3 INJUNCTIVE RELIEF. ▇▇▇▇▇▇▇▇▇▇ acknowledges that his
services are of a special, unique, unusual, extraordinary and intellectual
character, which gives them a peculiar value, the loss of which cannot be
reasonably or adequately compensated in damages in an action at law. If he
should breach this Agreement, in addition to its rights and remedies under
general law, the Company shall be entitled to seek equitable relief by way of
injunction or otherwise.
Section 4.4 PARTIAL INVALIDITY. If the application of any provision of
this Agreement, or any section, subsection, subdivision, sentence, clause,
phrase, word or portion of this Agreement should be held invalid or
unenforceable, the remaining provisions thereof shall not be affected thereby,
but shall continue to be given full force and effect as if the invalid or
unenforceable provision had not been included herein.
Section 4.5 NOTICES. Notices given under this Agreement shall be given
by registered or certified mail, postage prepaid, return receipt requested, or
by personal delivery to the respective addresses of the parties. Notices to
▇▇▇▇▇▇▇▇▇▇ shall be sent to [need address]. Notices to the Company shall be sent
to ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attn: Board of
Directors. A mailed first-class notice shall be deemed given two (2) business
days after deposit with U.S. Postal Service.
Section 4.6 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
Section 4.7 ASSIGNMENT. This Agreement may not be assigned or
encumbered in any way by ▇▇▇▇▇▇▇▇▇▇. The Company may assign this Agreement to
any successor (whether by merger, consolidation, or purchase of the Company's
stock) to all or a controlling interest in the Company's business, in which case
this Agreement shall be binding upon and inure to the benefit of such
successor(s) and assign(s).
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Section 4.8 LIMITATION ON WAIVER. A waiver of any term, provision, or
condition of this Agreement shall not be deemed to be, or constitute a waiver of
any other term, provision or condition herein, whether or not similar. No waiver
shall be binding unless in writing and signed by the waiving party.
Section 4.9 ATTORNEY'S FEES. In the event that any proceeding is
commenced involving the interpretation or enforcement of the provisions of this
Agreement, the Party prevailing in such proceeding shall be entitled to recover
its reasonable costs and attorneys' fees.
Section 4.10 ARBITRATION. If a dispute or claim shall arise with
respect to any of the terms or provisions of this Agreement, or with respect to
the performance by either of the parties under this Agreement, other than in
connection with the Company's enforcement of the provisions of Sections 2.3,
2.4, 2.5, and 2.6 or pursuant to Section 4.3, then either party may, by notice
as herein provided, require that the dispute be submitted under the Commercial
Arbitration Rules of the American Arbitration Association to an arbitrator in
good standing with the American Arbitration Association within fifteen (15) days
after such notice is given. The written decision of the single arbitrator
ultimately appointed by or for both parties shall be binding and conclusive on
the parties, including with respect to any award of attorneys' fees or costs.
Judgment may be entered on such written decision by the single arbitrator in any
court having jurisdiction and the parties consent to the jurisdiction of the
courts of the State of Texas for this purpose. Any arbitration undertaken
pursuant to the terms of this section shall occur in the State of Texas.
Section 4.11 TAXES. All payments made pursuant to the provisions of
this Agreement shall be subject to the withholding of applicable taxes.
Section 4.12 NOT FOR THE BENEFIT OF CREDITORS OR THIRD PARTIES. The
provisions of this Agreement are intended only for the regulation of relations
among the parties. This Agreement is not intended for the benefit of creditors
of the parties or other third parties and no rights are granted to creditors of
the parties or other third parties under this Agreement.
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IN WITNESS WHEREOF, this Agreement is executed as of the Effective
Date.
/S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
US DATAWORKS, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: CEO
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