Exhibit 10.3
ENGAGEMENT AGREEMENT
This Employment Agreement is made and entered into as of February 1st,
2010, by and between Nevada Processing Solutions, a Nevada corporation (the
"Company"), and Xxxxx Xxxxx, an individual ("Executive").
RECITALS
A. The Company desires to be assured of the association and services of
Executive for the Company.
B. Executive is willing and desires to be employed by the Company, and the
Company is willing to employ Executive, upon the terms, covenants and
conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual terms, covenants and
conditions hereinafter set forth, the parties hereto do hereby agree as
follows:
1. Employment. Company agrees to employ Executive, and Executive agrees to
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be employed by Company, beginning as of the Effective Date and continuing
until the termination date as set forth herein " (the "Term"), subject to the
terms and conditions of this Agreement and further subject to the supervision
and direction of the Company's Board of Directors.
2. Term. The term of this Agreement shall be for a period of two (2) years
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commencing on the date hereof, unless terminated earlier pursuant to Section
7 below; provided, however, that Executive's obligations in Section 6 below
shall continue in effect after such termination.
2.1 Post Term Employment.
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Should Executive remain employed by Company beyond the expiration of the
Term specified herein, then such employment shall convert to a month-to-month
relationship terminable at any time by either Company or Executive for any
reason whatsoever, with or without cause.
3. Scope of Duties.
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3.1 Assignment of Duties. Executive shall have such duties as may be
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assigned to him or her from time to time by the Company's Board of Directors
commensurate with his experience and responsibilities in the position for
which he is employed pursuant to Section 1 above. Such duties shall be
exercised subject to the control and supervision of the Board of Directors of
the Company.
3.2 General Specification of Duties. Executive's duties shall include, but
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not be limited to, the duties and performance goals as follows:
(1) act as Chief Executive Officer of the Company and perform all duties,
functions and responsibilities generally associated thereto;
(2) personally review and certify the financial statements of the company
as filed with the Securities and Exchange Commission in compliance
with Sarbanes Oxley and otherwise cause to be prepared, as directed
by the Company, financial statements, tax returns and other similar
items respecting the operation of the Company;
(3) execute on behalf of the Company, in his capacity as Chief Executive
Officer, all documents as requested by the Company;
(4) employ, pay, supervise and discharge all Executives of the Company,
and determine all matters with regard to such personnel, including,
without limitation, compensation, bonuses and fringe benefits, all in
accordance the policies which may be implemented by the Board of
Directors of the Company;
(5) assist in establishing procedures for implementing the policies
established by the Company;
(6) assist in insuring cooperation of the officers of the Company;
(7) assist in causing the Company to be operated in compliance with all
legal requirements; and
(8) assist in operating the Company in conformance with any plan approved
by the Company, as such may be amended from time to time with the
concurrence of the Company.
The foregoing specifications are not intended as a complete itemization of
the duties which Executive shall perform and undertake on behalf of the
Company in satisfaction of his or her employment obligations under this
Agreement.
3.3. Executive initially shall be employed in the position set forth
herein. Company may subsequently modify Executive's duties and
responsibilities; provided however, in the event Company substantially
reduces the duties or responsibilities of Executive, Executive may elect to
terminate this Agreement and said termination shall constitute an Involuntary
Termination. Executive shall at all times comply with and be subject to such
policies and procedures as Company may establish from time to time.
3.4 Executive's Devotion of Time. Executive hereby agrees to devote his
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time as required, but not as a full time employee or as a sole occupation,
sufficient abilities and energy to the faithful performance of the duties
assigned to him or her and to the promotion and forwarding of the business
affairs of the Company, and not to divert any business opportunities from the
Company to himself or herself or to any other person or business entity,
unless otherwise approved by the Board of Directors. The parties agree that
this duty shall be limited to a "part time" position, in that Executive has
other and separate business obligations and opportunities and that the
compensation provided by the Company is not intended to be paid as engaging a
full time employee.
3.5 Conflicting Activities.
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(1) Executive shall not, during the term of this Agreement, be engaged in
any other business activity substantially similar to that of the Company's
primary business without the prior consent of the Board of Directors of the
Company; provided, however, that this restriction shall not be construed as
preventing Executive from investing his personal assets in any investments,
in business entities which are not in competition with the Company or its
affiliates, or from pursuing business opportunities which do not unreasonably
impede his performance as executive for the Company.
(2) Executive hereby agrees to promote and develop all business
opportunities that come to his attention relating to current or anticipated
future business of the Company, in a manner consistent with the best
interests of the Company and with his duties under this Agreement. Should
Executive discover a business opportunity that does not relate to the current
or anticipated future business of the Company, he shall first offer such
opportunity to the Company. Should the Board of Directors of the Company not
exercise its right to pursue this business opportunity within a reasonable
period of time, not to exceed ten (10) days, then Executive may develop the
business opportunity for himself; provided, however, that such development
may in no way conflict or interfere with the duties owed by Executive to the
Company under this Agreement. Further, Executive may develop such business
opportunities only on his own time, and may not use any service, personnel,
equipment, supplies, facility, or trade secrets of the Company in their
development. As used herein, the term "business opportunity" shall not
include business opportunities involving investment in publicly traded
stocks, bonds or other securities, real estate or other investments of a
personal nature.
4. Compensation; Reimbursement.
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4.1 No Cash Compensation. For all services rendered by Executive under
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this Agreement, the Company shall not be obligated to pay any cash
compensation at this time. The Company is not sufficiently capitalized to
provide for cash compensation and Executive agrees to accept stock
compensation in lieu of cash compensation until such time as the Company has
adequate funding to pay a base salary and / or bonuses. The parties agree
that this term may be subject to revision and modification by entry into an
addendum for addition of an executive base salary and bonus when financing
permits. However, there is no time frame or other obligation on the part of
the Company to pay any cash compensation at this time.
4.2 Stock Compensation. Executive shall receive shares of common stock of
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Nevada Processing Solutions (the "Stock Based Compensation") which stock
shall be vested at the time of execution of this Agreement in the amount of
1,090,862 (one million ninety thousand eight hundred sixty-two) shares of
unregistered Nevada Processing Solutions common stock, which shares shall be
fully paid and non-assessable obligations of the Company. In the event that
Executive leaves the Company or substantially abandons his duties as set
forth herein, Executive shall be obliged to forgo his right and ownership of
any stock not yet vested (ESOP plan). Executive shall be issued all of the
Stock based Compensation upon execution of this Agreement.
4.3 Reimbursement. Executive shall be reimbursed for all reasonable "out-
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of-pocket" business expenses for business travel and business entertainment
incurred in connection with the performance of his or her duties under this
Agreement (1) so long as such expenses constitute business deductions from
taxable income for the Company and are excludable from taxable income to the
Executive under the governing laws and regulations of the Internal Revenue;
and (2) to the extent such expenses do not exceed the amounts allocable for
such expenses in budgets that are approved from time to time by the Company.
The reimbursement of Executive's business expenses shall be upon monthly
presentation to and approval by the Company of valid receipts and other
appropriate documentation for such expenses.
6. Confidentiality of Trade Secrets and Other Materials.
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6.1 Trade Secrets. Other than in the performance of his or her duties
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hereunder, Executive agrees not to disclose, either during the term of his or
her employment by the Company or at any time thereafter, to any person, firm
or corporation any information concerning the business affairs, the trade
secrets or the customer lists or similar information of the Company. Any
technique, method, process or technology used by the Company shall be
considered a "trade secret" for the purposes of this Agreement.
6.2 Ownership of Trade Secrets; Assignment of Rights. Executive hereby
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agrees that all know how, documents, reports, plans, proposals, marketing and
sales plans, client lists, client files and materials made by him or her or
by the Company are the property of the Company and shall not be used by him
in any way adverse to the Company's interests. Executive shall not deliver,
reproduce or in any way allow such documents or things to be delivered or
used by any third party without specific direction or consent of the Board of
Directors of the Company. Executive hereby assigns to the Company any rights
which he or she may have in any such trade secret or proprietary information.
7. Termination.
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7.1 Bases for Termination.
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(1) Executive's employment may be terminated by the Company "with cause,"
effective upon delivery of 5 business days of written notice to Executive if
any of the following shall occur:
(a) any action by Executive which would constitute a willful breach of
duty or habitual neglect of duty;
(b) any material breach of Executive's obligations as described herein; or
(c) any material acts or events which inhibit Executive from fully
performing his or her responsibilities to the Company in good faith,
such as (i) a felony criminal conviction; (ii) any other criminal
conviction involving Executive's lack of honesty or moral turpitude;
(iii) drug or alcohol abuse; or (iv) acts of dishonesty, gross
carelessness or gross misconduct.
(2) This Agreement shall automatically terminate on the last day of the
month in which Executive dies or becomes permanently incapacitated.
"Permanent incapacity" as used herein shall mean mental or physical
incapacity, or both, reasonably determined by the Company's Board of
Directors based upon a certification of such incapacity by, in the discretion
of the Company's Board of Directors, either Executive's regularly attending
physician or a duly licensed physician selected by the Company's Board of
Directors, rendering Executive unable to perform substantially all of his or
her duties hereunder and which appears reasonably certain to continue for at
least six consecutive months without substantial improvement. Executive shall
be deemed to have "become permanently incapacitated" on the date the
Company's Board of Directors has determined that Executive is permanently
incapacitated and so notifies Executive.
(3) Notwithstanding any other provisions of this Agreement, Executive
shall have the right to terminate the employment relationship under this
Agreement at any time prior to the expiration of the Term of employment for
any of the following reasons:
(i) a breach by Company of any provision of this Agreement which remains
uncorrected for 30 days following written notice of such breach by
Executive to Company; or
8. Miscellaneous.
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8.1 Transfer and Assignment. This Agreement is personal as to Executive
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and shall not be assigned or transferred by Executive without the prior
written consent of the Company. This Agreement shall be binding upon and
inure to the benefit of all of the parties hereto and their respective
permitted heirs, personal representatives, successors and assigns.
8.2 Severability. Nothing contained herein shall be construed to require
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the commission of any act contrary to law. Should there be any conflict
between any provisions hereof and any present or future statute, law,
ordinance, regulation, or other pronouncement having the force of law, the
latter shall prevail, but the provision of this Agreement affected thereby
shall be curtailed and limited only to the extent necessary to bring it
within the requirements of the law, and the remaining provisions of this
Agreement shall remain in full force and effect.
8.3 Governing Law. This Agreement is made under and shall be construed
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pursuant to the laws of the State of Nevada.
8.4 Counterparts. This Agreement may be executed in several counter parts
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and all documents so executed shall constitute one agreement, binding on all
of the parties hereto, notwithstanding that all of the parties did not sign
the original or the same counterparts.
8.5 Entire Agreement. This Agreement constitutes the entire agreement and
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understanding of the parties with respect to the subject matter hereof and
supersedes all prior oral or written agreements, arrangements, and
understandings with respect thereto. No representation, promise, inducement,
statement or intention has been made by any party hereto that is not embodied
herein, and no party shall be bound by or liable for any alleged
representation, promise, inducement, or statement not so set forth herein.
8.6 Modification. This Agreement may be modified, amended, superseded, or
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cancelled, and any of the terms, covenants, representations, warranties or
conditions hereof may be waived, only by a written instrument executed by the
party or parties to be bound by any such modification, amendment, super-
session, cancellation, or waiver.
8.7 Attorneys' Fees and Costs. In the event of any dispute arising out of
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the subject matter of this Agreement, the prevailing party shall recover, in
addition to any other damages assessed, its attorneys' fees and court costs
incurred in litigating or otherwise settling or resolving such dispute
whether or not an action is brought or prosecuted to judgment. In construing
this Agreement, none of the parties hereto shall have any term or provision
construed against such party solely by reason of such party having drafted
the same.
8.8 Waiver. The waiver by either of the parties, express or implied, of
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any right under this Agreement or any failure to perform under this Agreement
by the other party, shall not constitute or be deemed as a waiver of any
other right under this Agreement or of any other failure to perform under
this Agreement by the other party, whether of a similar or dissimilar nature.
8.9 Cumulative Remedies. Each and all of the several rights and remedies
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provided in this Agreement, or by law or in equity, shall be cumulative, and
no one of them shall be exclusive of any other right or remedy, and the
exercise of any one of such rights or remedies shall not be deemed a waiver
of, or an election to exercise, any other such right or remedy.
8.10 Headings. The section and other headings contained in this Agreement
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are for reference purposes only and shall not in any way affect the meaning
and interpretation of this Agreement.
8.11 Notices. Any notice under this Agreement must be in writing, may be
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telecopied, sent by express 24 hour guaranteed courier, or hand delivered, or
may be served by depositing the same in the United States mail, addressed to
the party to be notified, postage prepaid and registered or certified with a
return receipt requested. The addresses of the parties for the receipt of
notice shall be as follows:
If to the Company:
Nevada Processing Solutions
0000 Xxxxxxxx
Xxx Xxxxx, Xxxxxx 00000
[this address shall be updated upon the change of address of the Company]
If to Executive:
Xxxxx Xxxxx
000 Xxxxxx Xx.
Xxxxx 000
Xxxxxx, XX 00000
Each notice given by registered or certified mail shall be deemed delivered
and effective on the date of delivery as shown on the return receipt, and
each notice delivered in any other manner shall be deemed to be effective as
of the time of actual delivery thereof. Each party may change its address for
notice by giving notice thereof in the manner provided above.
8.12 Survival. Any provision of this Agreement which imposes an obligation
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after termination or expiration of this Agreement shall survive the
termination or expiration of this Agreement and be binding on Executive and
the Company.
8.13 Effective Date. This Agreement shall become effective as of the date
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set forth on page 1 when signed by Executive and the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Employment
Agreement to be executed as of the date first set forth above.
"Executive"
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
"Company"
Nevada Processing Solutions
By: /s/ J. Xxxx Xxxxxx
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J. Xxxx Xxxxxx,
Departing Executive Officer
