EXHIBIT 10.2
Employment Agreement
Between
Retrieval Dynamics Corp.
and
The Undersigned Employee
This Agreement is by and between Retrieval Dynamics Corp., having a
principal place of business at 701 Treasure Boat Way, Sarasota, Florida 33042,
its directors, officers, members, partners, employees, agents, successors and
assigns (hereinafter referred to individually and/or collectively as
"Employer"), and Anthony Cella, having a residence at 7430 Fairlinks Ct.,
Sarasota, FL, his/her heirs, estate, executors, administrators, agents and
assigns (hereinafter referred to individually and/or collectively as
"Undersigned Employee").
Employer and the Undersigned Employee are referred to collectively as
parties.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
I. INTRODUCTION AND DEFINITIONS
1.1 This Agreement is effective as of March 1, 2000.
1.2 Employer is engaged in the business of software development,
strategic planning, consultation services and sales in the field of electronic
wireless application service provider, and desires to employ and/or continue the
employment of the Undersigned Employee for the purpose of advancing its business
interests.
1.3 Accordingly, the employment and/or continued employment of the
Undersigned Employee with Employer is made subject to the terms and conditions
set forth herein.
1.4 As used in this Agreement, the following definitions shall control:
(A) "Business Interests" shall mean software development, strategic
planning, consultation services and sales of the products in which Employer is
actively or tentatively engaged in.
(B) "Client" and "Clients" shall mean any and all clients and partners
of the Employer, both past, present and future.
(C) "Employment" shall mean the time period during which the
Undersigned Employee receives or is due any type of compensation, whether
periodic or lump-sum, from the Employer, including but not limited to
compensation as a result of (i) full time, part-time, hourly, commissioned or
other type of work performed for or on behalf of the Employer, (ii) benefits
received under any Worker's Compensation insurance, or (iii) benefits received
under any federal, state or unemployment program.
(D) "Course of Employment" shall mean any and all actions taken and/or
services rendered by the Undersigned Employee for or on behalf of the Employer
or a Client, whether taken or rendered as a direct or indirect result of (i) the
Undersigned Employee's own initiative, (ii) a request by or on behalf of
Employer, (iii) a request by or on behalf of any subsidiary of or entity related
to Employer, or (iv) a request by or on behalf of a Client.
(E) "Termination" shall mean the last day of Employment of the
Undersigned Employee, regardless of the reason therefor, whether voluntary or
involuntary on the part of the Undersigned Employee.
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II. OBLIGATIONS OF CONFIDENTIALITY
2.1 Any and all information which Clients may disclose to Employer or
the Undersigned Employee, including but not limited Clients' relationship with
Employer, is considered confidential and proprietary to the respective client.
2.2 Any and all information about the Employer, including that
information which is learned by the Undersigned Employee during his or her
Employment with Employer, is considered confidential and proprietary to
Employer. Such confidential and proprietary information includes but is not
limited to Employer's list of Clients and its methods of doing business,
including its fee structure, pricing schedules, finances, business procedures,
sales letters, marketing materials and proposals.
2.3 Employer also considers confidential and proprietary its software
code, flowcharts, design documents, programming methodology, debugging
techniques, and all other information relating thereto.
2.4 Accordingly, absent authorization by an officer of Employer, the
Undersigned Employee hereby agrees not to disclose to others, either directly or
through any third party, the confidential and proprietary information specified
in Paragraphs 2.1, 2.2 and/or 2.3, regardless of the manner in which said
information was communicated to or received by the Undersigned Employee, whether
oral, written, digital or otherwise, and regardless of whether or not said
information was marked as confidential or proprietary.
2.5 The confidential and proprietary information specified in
Paragraphs 2.1, 2.2 and/or 2.3 is considered proprietary to, the exclusive
property of and owned-in-full by Employer. Accordingly, the Undersigned Employee
hereby agrees not to use, either directly or through any third party, said
information in any manner outside his or her Course of Employment without the
express written authorization of an officer of Employer.
2.6 The obligations set forth in Paragraphs 2.4 and 2.5 shall continue
ad infinitum.
III. AGREEMENT NOT TO COMPETE
3.1 The Undersigned Employee hereby agrees that during his or her
Employment, and for a period of one (1) year subsequent to Termination, he or
she will not engage in any activities competitive to the Business Interests of
Employer, or advise or be employed by any company or other entity, in any
capacity, which engages in or by Employee's hire contemplates to be engaged in
activities or business interests similar or identical to that of the Business
Interests of Employer.
3.2 The obligations set forth in Paragraph 3.1 are limited to the 48
contiguous states comprising the United States of America.
3.3 The Undersigned Employee hereby agrees that during his or her
Employment, and for a period of two (2) years subsequent to Termination, he or
she will not solicit or otherwise contact, or perform any services for or on
behalf of, either directly or through any third party, any Client for any reason
whatsoever outside the scope of the Undersigned Employee's Employment, absent
written authorization by an officer of Employer.
3.4 The Undersigned Employee acknowledges that the obligations set
forth in Paragraphs 3.1, 3.2 and/or 3.3 may, for a limited period of time
subsequent to Termination, result in a decrease in earning capacity. However,
the Undersigned Employee represents that he or she has demonstrated abilities to
earn substantial income from business activities non-competitive with those of
Employer and has accepted the restrictions imposed by this Agreement as a result
of his or her considered judgment of the benefits that may accrue from the
employment with Employer.
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3.5 Although Employer has attempted to place the narrowest possible
limitations on the Undersigned Employee's subsequent employment opportunities,
the Undersigned Employee may nonetheless find that such limitations constitute a
serious handicap in securing further employment. In the event the Undersigned
Employee finds that the obligations set forth in Paragraphs 3.1, 3.2 and/or 3.3
constitute a serious handicap in securing further employment, the Undersigned
Employee agrees to make written request to Employer for a waiver thereof prior
to accepting employment in conflict therewith. Such request shall include the
name and address of the organization at which the Undersigned Employee seeks
employment, and the position and complete list of duties which the Undersigned
Employee will be performing therefor. A waiver, unqualified or upon stated
conditions, may be granted by Employer. However, Employer is under no obligation
to waive any of the obligations set forth in Paragraphs 3.1, 3.2 and/or 3.3
where waiver will or may, in the subjective opinion of Employer, interfere with
or be adverse to Employer's Business Interests as same may develop.
3.6 It is understood that any violation by the Undersigned Employee of
any obligation set forth in Paragraphs 3.1, 3.2 and/or 3.3 would result in
substantial harm to Employer for which an adequate remedy at law is
insufficient. Accordingly, Employer may seek injunctive relief as a result of
any violation by the Undersigned Employee of any obligation set forth in
Paragraphs 3.1, 3.2 and/or 3.3. Injunctive relief shall be in addition to, and
not in lieu of, any other remedies available to the Employer.
IV. ASSIGNMENT OF INTELLECTUAL PROPERTY RIGHTS
4.1 Any and all work product produced for the Employer and services
rendered by the Undersigned Employee during his or her Employment, whether in
draft or final format and whether or not completed by the Undersigned Employee
during his or her Employment, is considered proprietary to, the exclusive
property of and owned-in-full by Employer.
4.2 Any and all inventions or improvements of an invention, whether
patentable or not, copyrights, trademarks, trade dress, trade secrets or
know-how which the Undersigned Employee conceives of or reduces to practice
during his or her Employment as a direct or indirect result of his or her
Employment, is considered proprietary to, the exclusive property of and
owned-in-full by Employer.
4.3 The Undersigned Employee shall promptly and completely disclose to
Employer the subject matter set forth in Paragraphs 4.1 and 4.2 as necessary to
keep Employer fully and timely aware of same.
4.4 The Undersigned Employee hereby agrees to assign and by this
document does hereby assign to Employer any and all rights, title and interest
which he or she has or may have in and to the subject matter set forth in
Paragraphs 4.1 and 4.2.
4.5 The Undersigned Employee shall and will do all lawful acts and
things, make all rightful oaths, and make, execute and deliver any and all other
instruments in writing, and any and all further applications, papers, powers,
affidavits, assignments, disclaimers and other documents which may be required
or necessary in this or in any foreign country to more effectually secure to and
vest in Employer the entire right, title and interest in and to the subject
matter specified in Paragraph 4.4.
4.6 The Undersigned Employee warrants that he or she has full right to
convey the entire right, title and interest herein assigned free and clear of
all licenses, encumbrances and liens whatsoever, and that he or she has not
executed and will not execute any instrument in conflict herewith.
V. REMUNERATION & TERM THEREOF
5.1 The Undersigned Employee shall receive the following remuneration:
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(A) Salary: First 8 months salary in the amount of $120,000 per year to
be paid in equal monthly installments over the 8 months; starting November 1,
2000 the amount of $160,000 to be paid in equal monthly installments over the
next 14 months.
(B) A monthly automobile allowance equal to $1,000.00 per month, (all
inclusive). The company, at its' discretion, has the right to obtain a vehicle
for your use, which will eliminate the monthly allowance.
(C) Cellular phone service will be provided by the company.
(D) Other Benefits: In addition to the above, the Undersigned Employee
shall also be entitled to the following Other Benefits, as same become
available, on terms and conditions as the Employer, in its sole discretion, may
determine: (I) participation in the Employer's bonus incentive program; (ii)
participation for the Undersigned Employee in the Employer's health plan
(including family benefits), term life insurance and accidental death and
dismemberment policy; and (iii) participation in the Employer's employee stock
option plan.
5.2 The term of this section V ("Term") shall be for two (2) years,
effective as of March 1, 2000 ("Start Date"), whereupon all obligations of the
Employer set forth in this section V shall cease and be of no further force or
effect, provided, however, as follows:
(A) Early Termination by Undersigned Employee: The Undersigned Employee
may voluntarily terminate his/her Employment upon written notice to an officer
or director of the Employer, the effective date thereof to be determined by the
Employer.
(B) Early Termination by Employer: Notwithstanding the above, the
Undersigned Employee understands and accepts that his/her Term of Employment is
at the will of the Employer, and as such, the Employer may terminate the
Undersigned Employee for cause or for no cause at all. However, in the event the
Employer does not offer the Undersigned Employee continued Employment under any
conditions, the Undersigned Employee shall receive six (6) consecutive monthly
payments, each payment equal to the amount of the Undersigned Employee's monthly
base salary (as set forth in Paragraph 5.1(A)), less applicable taxes and
deductions. This Paragraph 5.1(C) shall not apply in the event the Undersigned
Employee voluntarily terminated his/her Employment or was terminated by the
Employer for cause.
(C) Non-renewal of Employment after Term. At the end of the Term, the
Employer is under no obligation to offer the Undersigned Employee continued
Employment under any conditions. However, in the event the Employer does not
offer the Undersigned Employee continued Employment under any conditions, the
Undersigned Employee shall receive six (6) consecutive monthly payments, each
payment equal to the amount of the Undersigned Employee's monthly base salary
(as set forth in Paragraph 5.1(A)), less applicable taxes and deductions. This
Paragraph 5.1(C) shall not apply in the event the Undersigned Employee
voluntarily terminated his/her Employment or was terminated by the Employer for
cause.
(D) In addition, should there be a change of ownership, a contract
continuation clause will be in effect, requiring the continued employment or
severance package covering a period not to exceed one year, for salary and
benefits only. The acquiring company has the option to assist you in the search
or obtaining of similar employment, at a similar salary.
VI. WARRANTIES
6.1 The Undersigned Employee represents and warrants that he or she:
(i) has the right to enter into this Agreement; (ii) has read and understands
all of the terms and conditions contained herein; (iii) has
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been advised by the Employer to seek legal counsel regarding the review of this
Agreement prior to signing it; (iv) has had an opportunity to consult with an
attorney regarding the terms and conditions contained herein; (v) has been given
an opportunity to propose changes and modifications to this Agreement; (vi) has
waived its opportunity to protest or contest any provision of this Agreement,
both now and in the future; and (vii) hereby agrees to be bound by and to the
terms and conditions of this Agreement.
6.2 The Employer has made no representations concerning any of the
terms or conditions contained herein, except as follows (if none, state "none"):
________________________________
VII. CONSTRUCTION & OTHER PROVISIONS
7.1 This Agreement represents a complete integration of all terms and
conditions specified herein between the parties and supersedes any and all
previous Agreements, whether oral or written, directed to the subject matter
specified herein.
7.2 Any and all modifications or changes to, or cancellations or
extensions of this Agreement shall be in writing and executed by both parties.
7.3 All Paragraphs contained in this Agreement are part of this
Agreement. The titles to the various sections of this Agreement, however, are
for clarity; they are not intended to be limiting in any way.
7.4 The parties to this Agreement agree and consent that the proper
forum and court jurisdiction is in the State of the employee, and that any and
all disputes which arise or may arise on account of this Agreement shall be
litigated either by filing an action in the Superior Court, Judicial District
of, or in a federal district court located in the employees State. The parties
further agree that neither party nor its agents shall move to transfer the
matter to any other court or arbitration forum for any reason, absent written
consent by both parties.
7.5 This Agreement shall inure to the benefit of and shall be binding
upon Employer's successors and assigns, as well as the Undersigned Employee's
heirs, estate, executors, administrators, agents and assigns.
7.6 In the event a court of competent jurisdiction holds or finds any
of the terms or conditions contained in this Agreement to be invalid or
unenforceable, such holding or finding shall not affect the validity or
enforceability of any of the other terms or conditions contained in this
Agreement.
7.7 In the event it becomes necessary for Employer to enforce any
provision of this Agreement against the Undersigned Employee or its future
employer(s), the burden of financial responsibility for such action shall be
governed by the disputing party's State jurisdiction.
7.8 Nothing in this Agreement shall prohibit the Undersigned Employee
from performing services for others not in conflict with this Agreement.
7.9 The Undersigned Employee, by initialing the bottom portion of each
page of this Agreement, represents and affirms that he or she has read and
understands each Paragraph of this Agreement, and agrees to be bound by the
terms and conditions set forth herein.
7.10 The Undersigned Employee shall receive its regular remuneration
from Employer as consideration for the terms and conditions set forth in this
Agreement.
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7.11 Any waiver of the compensation specified in Paragraph 6.10 by the
Undersigned Employee shall not negate the Undersigned Employee's obligations set
forth in this Agreement.
7.12 The Undersigned Employee hereby agrees to fully cooperate with
Employer in its efforts to enforce and/or secure its rights specified in this
Agreement.
VIII. AS AGREED BY THE PARTIES
8.1 This Agreement is being executed in duplicate, thereby providing
each party hereto an original, executed copy for their records.
UNDERSIGNED EMPLOYEE EMPLOYER
Signature: /s/ Anthony A. Cella Signature: /s/ Peter M. Voghel
Print Name: Anthony A. Cella By: Peter M. Voghel
Title: President
duly authorized
Date: October 30, 2000 Date: 11/2/2000
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