EMPLOYMENT AGREEMENT
Exhibit
10.3
THIS
EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into as of this
5th
day of October, 2005, (the "Effective Date"), between INTERACTIVE
GAMES, INC.,
a
Florida corporation having its principal place of business located at 000
Xxxxxxxx Xxxxxx, Xxxx Xxxx Xxxxx, Xx. 00000 (“the "Company") and Xxxxx Xxxx, an
individual residing at 000 X. Xxxxxxx Xxxxx, Xxxx Xxxx Xxxxx, Xxxxxxx 00000(xxx
"Employee") (collectively “the Parties”).
WHEREAS,
the Company is a Florida corporation that is engaged in all aspects of mobile
gaming technology; and
WHEREAS,
the Company desires to employ the Employee and the Employee desires to be in
the
employ of the Company; and
WHEREAS,
the Company has a valuable reputation and goodwill in its business, with
expertise in all aspects of the video gaming technology field (the "Business");
and
WHEREAS,
Employee has extensive experience in the Business; and
WHEREAS,
the Employee, by virtue of the Employee's employment with the Company, will
become familiar with and possessed with the manner, methods, trade secrets
and
other confidential information pertaining to the Company's Business, including
the Company's client base;
NOW,
THEREFORE, in consideration of the mutual agreements contained, the Company
and
the Employee do hereby agree as follows:
Recitals.
The above recitals are true, correct, and are herein incorporated by reference.
1. Employment.
The Company hereby employs the Employee, and the Employee hereby accepts
employment, upon the terms and conditions hereinafter set forth.
2. Authority
and Power During Employment Period.
a. Duties
and Responsibilities.
During
the "Term" and any "Renewal Term" (as hereinafter defined) of this Agreement,
the Employee shall serve the Company as The Vice President of Operations and
Product Development and shall have such operating supervision over all gaming
technology developed, produced, or distributed by the Company, as is directed
by
the Board of Directors and/or the Chief Executive Officer of the Company.
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b. Time
Devoted.
Throughout the term of the Agreement, the Employee shall devote substantially
all of the Employee's business time and attention to the business and affairs
of
the Company consistent with the Employee's position with the Company, except
for
reasonable vacations, illness or incapacity.
3. Term.
The
Term of employment hereunder will commence on the Effective date as set forth
above and end ONE (1) YEAR thereafter, unless terminated pursuant to Section
5
of this Agreement ("Term"), provided, however, that this Agreement shall be
renewable upon mutual written consent of the parties ("Renewal Term") for
additional ONE (1) YEAR terms.
4. Compensation
and Benefits.
a. Salary.
The
Employee shall be paid a base salary (the "Base Salary"), payable bi-weekly,
at
an annual rate of FIFTY THOUSAND Dollars ($50,000.00) or accrued and payable
in
the common stock of the Company.
b. Company
Stock. As
further compensation, the Employee shall receive ONE-HUNDRED THOUSAND (100,000)
RESTRICTED shares of the Company’s Stock. Employee is prohibited from selling
the shares received pursuant to this paragraph during the Term of this
Agreement. In the event the employment relationship created hereunder is
terminated prior to the end of the Term, Employee shall immediately return
said
shares to Company.
c. Employee
Benefits.
The
Company shall pay for health insurance for Employee if so desired and make
health insurance available for Employee’s family, at Employee’s sole expense.
d. Business
Expense Reimbursement.
During
the Term or any Renewal Term, of employment, the Employee shall be entitled
to
receive proper reimbursement for all reasonable, out-of-pocket expenses incurred
by the Employee (in accordance with the policies and procedures established
by
the Company for its executive officers) in performing services hereunder,
provided the Employee properly accounts therefor and provided further that
any
expense in excess of $100 or in the aggregate of $500 must be approved in
advance by the Chief Executive Officer.
e. Vacation.
During
each fiscal year with the Company, the Employee shall be entitled to ONE (1)
WEEK paid vacation to be utilized or paid for each year (without accrual or
carry over into the following year); provided however, that the Employee shall
evidence reasonable judgment with regard to appropriate vacation scheduling
in
regard to the business affairs and operations of the Company and its
subsidiaries.
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5. Consequences
of Termination of Employment.
a. Death.
In the
event of the death of the Employee during the Term or Renewal Term of the
Agreement, this Employment Agreement is automatically terminated.
b. Termination
by the Company for Cause.
i. Nothing
herein shall prevent the Company from terminating Employment for "Cause," as
hereinafter defined. The Employee shall continue to receive salary only for
the
period ending with the date of such termination as provided in this Section
5
(b). Any rights and benefits the Employee may have in respect of any other
compensation shall be determined in accordance with the terms of such other
compensation arrangements or such plans or programs.
ii. "Cause"
shall mean (A) committing or participating in an injurious act of fraud, gross
neglect, misrepresentation, embezzlement or dishonesty against the Company;
(B)
committing or participating in any other injurious act or omission wantonly,
willfully, recklessly or in a manner which was grossly negligent against the
Company, monetarily or otherwise; (C) engaging in a criminal enterprise
involving moral turpitude; (D) an act or acts (I) constituting a felony under
the laws, rules or regulations of the United States, any state thereof or any
association or other regulatory agency or (II) if applicable, loss of any state
or federal license required for the Employee to perform the Employee's material
duties or responsibilities for the Company; (E) a breach of any representation,
warranty, covenant or agreement contained herein, including any assignment
of
this Agreement by the Employee in violation of Section 12 of this Agreement;
(F)
a conflict in the business philosophy of the Employee with the needs, interests
and/or business philosophy of the Company, as determined in the sole discretion
of the Board of Directors of the Company; or (G) any other action as determined
by the Board of Directors and/or the Chief Executive Officer of the Company
to
not be in the best interests of the Company.
iii. Notwithstanding
anything else contained in this Agreement, this Agreement will not be deemed
to
have been terminated for Cause unless and until there shall have been delivered
to the Employee a notice of termination stating that the Employee committed
one
of the types of conduct set forth in this Section 5(b) contained in this
Agreement and specifying the particulars thereof and the Employee shall be
given
a ten (10) day period to cure such conduct set forth in Section
5(b)(ii)(D)(II).
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c. Termination
by the Company Other than for Cause.
The
foregoing notwithstanding, the Company may terminate the Employee's employment
for whatever reason it deems appropriate; provided, however, that in the event
such termination is not based on Cause, as provided in Section 5(b) above,
the
Company may terminate this Agreement upon giving thirty (30) days prior written
notice. During such thirty (30) day period, the Company shall continue to
compensate the Employee in accordance with this Agreement.
d. Voluntary
Termination.
In the
event the Employee terminates the Employee's employment on the Employee's own
volition prior to the expiration of the Term or Renewal Term of this Agreement,
such termination shall constitute a voluntary termination and in such event
the
Employee shall be limited to the same rights and benefits as provided in
connection with a termination for Cause as provided in Section
5(b).
6. Covenant
Not to Compete and Non-Disclosure of Information.
a. Covenant
Not to Compete.
The
Employee acknowledges and recognizes the highly competitive nature of the
Company's Business and the goodwill, continued patronage, and specifically
the
names and addresses of the Company's Clients (as hereinafter defined) constitute
a substantial asset of the Company having been acquired through considerable
time, money and effort. Accordingly, in consideration of the execution of this
Agreement, the Employee agrees to the following:
i. That
during the Restricted Period (as hereinafter defined) and within the Restricted
Area (as hereinafter defined), the Employee will not, individually or in
conjunction with others, directly or indirectly, engage in any Business
Activities (as hereinafter defined), whether as an employee, officer, director,
proprietor, employer, partner, independent contractor, investor (other than
as a
holder solely as an investment of less than one percent (1%) of the outstanding
capital stock of a publicly traded corporation), consultant, advisor, agent
or
otherwise.
ii. That
during the Restricted Period and within the Restricted Area, the Employee will
not, directly or indirectly, compete with the Company by soliciting, inducing
or
influencing any of the Company's clients which have a business relationship
with
the Company at the time during the Restricted Period to discontinue or reduce
the extent of such relationship with the Company.
iii. That
during the Restricted Period and within the Restricted Area, the Employee will
not (A) directly or indirectly recruit, solicit or otherwise influence any
employee or agent of the Company to discontinue such employment or agency
relationship with the Company, or (B) employ or seek to employ, or cause or
permit any business which competes directly or indirectly with the Business
Activities of the Company (the "Competitive Business") to employ or seek to
employ for any Competitive Business any person who is then (or was at any time
within six (6) months prior to the date Employee or the Competitive Business
employs or seeks to employ such person) employed by the Company.
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iv. That
during the Restricted Period the Employee will not interfere with, or disrupt
or
attempt to disrupt any past, present or prospective relationship, contractual
or
otherwise, between the Company and any customer, employee or agent of the
Company.
b. Non-Disclosure
of Information.
The
Employee acknowledges that the Company's trade secrets, private or secret
processes, methods and ideas, as they exist from time to time, customer lists
and information concerning the Company's services, training methods,
development, technical information, marketing activities and procedures, credit
and financial data concerning the Company and/or the Company's Clients (the
"Proprietary Information") are valuable, special and unique assets of the
Company, access to and knowledge of which are essential to the performance
of
the Employee hereunder. In light of the highly competitive nature of the
industry in which the Company's business is conducted, the Employee agrees
that
all Proprietary Information, heretofore or in the future obtained by the
Employee as a result of the Employee's association with the Company, shall
be
considered confidential.
In
recognition of this fact, the Employee agrees that the Employee, during the
Restricted Period, will not use or disclose any of such Proprietary Information
for the Employee's own purposes or for the benefit of any person or other entity
or organization (except the Company) under any circumstances unless such
Proprietary Information has been publicly disclosed generally or, unless upon
written advice of legal counsel reasonably satisfactory to the Company, the
Employee is legally required to disclose such Proprietary Information. Documents
(as hereinafter defined) prepared by the Employee or that come into the
Employee's possession during the Employee's association with the Company are
and
remain the property of the Company, and when this Agreement terminates, such
Documents shall be returned to the Company at the Company's principal place
of
business, as provided in the Notice provision (Section 8) of this
Agreement.
c. Documents.
"Documents" shall mean all original written, recorded, or graphic matters
whatsoever, and any and all copies thereof, including, but not limited to:
papers; books; records; tangible things; correspondence; communications; telex
messages; memoranda; work-papers; reports; affidavits; statements; summaries;
analyses; evaluations; client records and information; agreements; agendas;
advertisements; instructions; charges; manuals; brochures; publications;
directories; industry lists; schedules; price lists; client lists; statistical
records; training manuals; computer printouts; books of account, records and
invoices reflecting business operations; all things similar to any of the
foregoing however denominated. In all cases where originals are not available,
the term "Documents" shall also mean identical copies of original documents
or
non-identical copies thereof.
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d. Company's
Clients.
The
"Company's Clients" shall be deemed to be any persons, partnerships,
corporations, professional associations or other organizations for whom the
Company has performed or discussed performing Business Activities.
e. Restrictive
Period.
The
"Restrictive Period" shall be deemed to be THREE (3) years following termination
of this Agreement.
f. Restricted
Area.
The
Restricted Area shall be deemed to mean within, Palm Beach County, Broward
County, Dade County and Monroe County, Florida and within any other county
of
any state in which the Company is providing service or has a client at the
time
or within six (6) months of termination.
g. Business
Activities.
"Business Activities" shall be deemed to include any general trust business
activities and any additional activities which the Company or any of its
affiliates may engage in during the Term or any Renewal Term of this
Agreement.
h. Covenants
as Essential Elements of this Agreement.
It is
understood by and between the parties hereto that the foregoing covenants
contained in Sections 6 (a) and (b) are essential elements of this Agreement,
and that but for the agreement by the Employee to comply with such covenants,
the Company would not have agreed to enter into this Agreement. Such covenants
by the Employee shall be construed to be agreements independent of any other
provisions of this Agreement. The existence of any other claim or cause of
action, whether predicated on any other provision in this Agreement, or
otherwise, as a result of the relationship between the parties shall not
constitute a defense to the enforcement of such covenants against the Employee.
In the event Employee shall be in violation of the aforementioned restrictive
covenants, the time limitation thereof with respect to the defaulting party
shall be extended for a period of time equal to the period of time during which
breach or breaches should occur; and in the event Company should require or
seek
relief from breach in any court or other tribunal, any covenant shall be
extended for a period of time equal to the pendency of such proceeding,
including appeals thereof.
i. Survival
After Termination of Agreement.
Notwithstanding anything to the contrary contained in this Agreement, the
covenants in Sections 6 (a) and (b) shall survive the termination of this
Agreement and the Employee's employment with the Company.
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j. Remedies.
i. The
Employee acknowledges and agrees that the Company's remedy at law for a breach
or threatened breach of any of the provisions of Section 6 (a) or (b) herein
would be inadequate and the breach shall be per se deemed as causing irreparable
harm to the Company. In recognition of this fact, in the event of a breach
by
the Employee of any of the provisions of Section 6(a) or (b), the Employee
agrees that, in addition to any remedy at law available to the Company,
including, but not limited to monetary damages, all rights of the Employee
to
payment or otherwise under this Agreement and all amounts then or thereafter
due
to the Employee from the Company under this Agreement may be terminated and
the
Company, without posting any bond, shall be entitled to obtain, and the Employee
agrees not to oppose the Company's request for equitable relief in the form
of
specific performance, temporary restraining order, temporary or permanent
injunction or any other equitable remedy which may then be available to the
Company.
ii. The
Employee acknowledges that the granting of a temporary injunction, temporary
restraining order or permanent injunction merely prohibiting the use of
Proprietary Information would not be an adequate remedy upon breach or
threatened breach of Section 6 (a) or (b) and consequently agrees, upon proof
of
any such breach, to the granting of injunctive relief prohibiting any form
of
competition with the Company. Nothing herein contained shall be construed as
prohibiting the Company from pursuing any other remedies available to it for
such breach or threatened breach.
7. Withholding.
Anything to the contrary notwithstanding, all payments required to be made
by
the Company hereunder to the Employee or the Employee's estate or beneficiaries
shall be subject to the withholding of such amounts, if any, relating to tax
and
other payroll deductions as the Company may reasonably determine it should
withhold pursuant to any applicable law or regulation. In lieu of withholding
such amounts, the Company may accept other arrangements pursuant to which it
is
satisfied that such tax and other payroll obligations will be satisfied in
a
manner complying with applicable law or regulation.
8. Notices.
Any
notice required or permitted to be given under the terms of this Agreement
shall
be sufficient if in writing and if sent postage prepaid by registered or
certified mail, return receipt requested; by overnight delivery; by courier;
or
by confirmed telecopy, in the case of the Employee to the Employee's residence
as set forth in the first paragraph of this Agreement or as shown on the records
of the Company, or in the case of the Company, to its principal office as set
forth in the first paragraph of this Agreement, or at such other place as it
may
designate.
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9. Waiver.
Unless
agreed in writing, the failure of either party, at any time, to require
performance by the other of any provisions hereunder shall not affect its right
thereafter to enforce the same, nor shall a waiver by either party of any breach
of any provision hereof be taken or held to be a waiver of any other preceding
or succeeding breach of any term or provision of this Agreement. No extension
of
time for the performance of any obligation or act shall be deemed to be an
extension of time for the performance of any other obligation or act
hereunder.
10. Completeness
and Modification.
This
Agreement constitutes the entire understanding between the parties hereto
superseding all prior and contemporaneous agreements or understandings among
the
parties hereto. This Agreement may be amended, modified, superseded or canceled,
and any of the terms, covenants, representations, warranties or conditions
hereof may be waived, only by a written instrument executed by the parties
or,
in the case of a waiver, by the party to be charged.
11. Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed an
original but all of which shall constitute but one agreement.
12. Binding
Effect/Assignment.
This
Agreement shall be binding upon the parties hereto, their heirs, legal
representatives, successors and assigns. This Agreement shall not be assignable
by the Employee but shall be assignable by the Company in connection with the
sale, transfer or other disposition of its business or to any of the Company's
affiliates controlled by or under common control with the Company.
13. Governing
Law.
This
Agreement shall become valid when executed and accepted by Company. The parties
agree that it shall be deemed made and entered into in the State of Florida
and
shall be governed and construed under and in accordance with the laws of the
State of Florida. Anything in this Agreement to the contrary notwithstanding,
the Employee shall conduct the Employee's business in a lawful manner and
faithfully comply with applicable laws or regulations of the state, city or
other political subdivision in which the Employee is located.
14. Further
Assurances.
All
parties hereto shall execute and deliver such other instruments and do such
other acts as may be necessary to carry out the intent and purposes of this
Agreement.
15. Headings.
The
headings of the sections are for convenience only and shall not control or
affect the meaning or construction or limit the scope or intent of any of the
provisions of this Agreement.
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16. Survival.
Any
termination of this Agreement shall not, however, affect the ongoing provisions
of this Agreement which shall survive such termination in accordance with their
terms.
17. Severability.
The
invalidity or unenforceability, in whole or in part, of any covenant, promise
or
undertaking, or any section, subsection, paragraph, sentence, clause, phrase
or
word or of any provision of this Agreement shall not affect the validity or
enforceability of the remaining portions thereof.
18. Enforcement.
Should
it become necessary for any party to institute legal action to enforce the
terms
and conditions of this Agreement, the successful party will be awarded
reasonable attorneys' fees at all trial and appellate levels, expenses and
costs.
19. Venue.
Company
and Employee acknowledge and agree that Palm Beach County, Florida, shall be
the
venue and exclusive proper forum in which to adjudicate any case or controversy
arising either, directly or indirectly, under or in connection with this
Agreement and the parties further agree that, in the event of litigation arising
out of or in connection with this Agreement, they will not contest or challenge
the jurisdiction or venue of these courts.
20. Attorneys’
Fee.
In the
event either party is required to enforce the terms of this agreement, the
prevailing party in litigation shall be entitled to reimbursement for its
reasonable attorneys’ fees and costs expended furtherance thereof.
21. Construction.
This
Agreement shall be construed within the fair meaning of each of its terms and
not against the party drafting the document.
THE
EMPLOYEE ACKNOWLEDGES THAT THE EMPLOYEE HAS READ ALL OF THE TERMS OF THIS
AGREEMENT, HAS HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, UNDERSTANDS THE
AGREEMENT, AND AGREES TO ABIDE BY ITS TERMS AND CONDITIONS.
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of date set forth
in the first paragraph of this Agreement.
INTERACTIVE
GAMES, INC.
Witness:
______________________
By:
________________________________
Xxxxxxx
Xxxxxxxx
Its: Chairman
Witness:
______________________ ________________________________
XXXXX
XXXX
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