EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT ("Agreement") is made by and between PSI Corp., a duly
organized Nevada corporation (“Employer”), and Xxxxxx Xxxx, a resident of the
State of Ohio (“Employee”).
WITNESSETH:
WHEREAS,
Employer is in need of persons with experience at the executive level in
developing, organizing and managing operational strategies in the self service
industry; and
WHEREAS,
Employee has a substantial amount of the operations experience needed by
Employer; and
WHEREAS,
Employee is willing to be employed by Employer, and Employer is willing to
employ Employee, on the terms, covenants and conditions hereinafter set forth;
and
WHEREAS,
Employer and its affiliates have accumulated valuable and confidential
information, including, without limitation, trade secrets and know-how relating
to technology, equipment, marketing plans, acquisition plans, sources of supply,
business strategies and other business records; and
WHEREAS,
the giving of the covenants contained herein is a condition precedent to the
employment of Employee by Employer and Employee acknowledges that the execution
of this Agreement and the entering into of these covenants is an express
condition of his employment by Employer and that said covenants are given in
consideration for such employment and the other benefits conferred upon him
by
this Agreement; and
NOW,
THEREFORE, in consideration of such employment and other valuable consideration,
the receipt and adequacy of which is hereby acknowledged, Employer and Employee
hereby agree as follows:
SECTION
I. EMPLOYMENT OF EMPLOYEE
Employer
hereby employs, engages and hires Employee as Chief Operations Office of PSI
Corporations, and Employee hereby accepts and agrees to such hiring, engagement
and employment, subject to the direct supervision and direction of the President
and CEO of Employer, as well as the general supervision of the Board of
Directors of Employer. Employee shall perform duties as are customarily
performed by one holding such position in other, same or similar businesses
or
enterprises as that engaged in by Employer, and shall also additionally render
such other and unrelated services and duties as may be assigned to him from
time
to time by Employer.
SECTION
II. EMPLOYEE’S PERFORMANCE
Employee
hereby agrees that he will, at all times, faithfully, industriously and to
the
best of his ability, experience and talents, perform all of the duties that
may
be required of and from him pursuant to the express and implicit terms hereof,
to the reasonable satisfaction of Employer.
SECTION
III. COMPENSATION OF EMPLOYEE
Employer
shall pay Employee, and Employee shall accept from Employer, in full payment
for
Employee's services hereunder, compensation as follows:
| A. |
Salary.
Employee shall be paid a salary of $160,000 per year, which salary
shall
be payable in equal installments on the 1st and 15th days of each
calendar
month, in arrears, subject to deduction of all lawful and required
withholding. Employer may, in its sole discretion, for any payment
period
hereunder, elect to pay up to 100% of Employee’s salary in shares of
Employer’s $.0001 par value Common Stock. Any such shares issued to
Employee shall be valued as follows: each share of Employer Common
Stock
shall be issued at a per share price identified by the company on
the
first of each month. The compensation due Employee shall be divided
by the
per share value of Employer’s Common Stock, as determined by the
foregoing, to determine the number of shares owed
Employee.
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| B. |
Insurance
and Other Benefits. As further consideration for the covenants contained
herein, Employer will provide Employee with such insurance, welfare,
sick
leave and other benefits as may be established by Employer from time
to
time with respect to its employees in accordance with Employer’s
established procedures.
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| C. |
Other
Compensation Plans. Employee shall be entitled to participate, to
the same
extent as is provided to other persons employed by Employer, in any
future
stock bonus plan, stock option plan or employee stock ownership plan
of
Employer.
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| D. |
Expenses.
It is acknowledged that, during the term of employment, Employee
will be
required to incur ordinary and necessary business expenses on behalf
of
Employer in connection with the performance of his duties hereunder.
Employer shall reimburse Employee promptly the amount of all such
expenses
upon presentation of itemized vouchers or other evidence of those
expenditures. Any single expense item in excess of $1,000.00 shall
be
approved by Employer prior to the incurrence of such
expense.
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| E. |
Vacations.
Employee shall be entitled to two (2) weeks paid vacation each year
for
the term of this Agreement. Such vacations shall be taken at such
times as
Employer designates as to time-of-year. Vacation time can be accumulated
year-to-year up to three years
maximum.
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SECTION
IV. COMPANY POLICIES
Employee
agrees to abide by the policies, rules, regulations or usages applicable to
Employee as established by Employer from time to time and provided to Employee
in writing.
SECTION
V. CONFIDENTIALITY AGREEMENT; NON-COMPETITION AGREEMENT
| A. |
In
consideration of Employer’s executing this Agreement, Employee shall have
executed, prior to the execution of this Agreement, a Confidentiality
Agreement (the “Confidentiality Agreement”), in the form attached hereto
as Exhibit “A”.
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| B. |
In
consideration of Employer’s executing this Agreement, Employee agrees,
effective as of the date hereof, to sign and be bound by the obligations
of an Agreement Not to Compete (the “Non-Competition Agreement”), in the
form attached hereto as Exhibit
“B”.
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| C. |
The
obligations under the Confidentiality Agreement and the Non-Competition
Agreement shall survive the termination of this
Agreement.
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SECTION
VI. TERM AND TERMINATION
| A. |
Term.
The term of this Agreement shall be a period of twenty-four (24)
months,
commencing on the date hereof.
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| B. |
Termination.
Employer agrees not to terminate this Agreement except for "just
cause",
and agrees to give Employee written notice of its belief that acts
or
events constituting "just cause" exist. Employee has the right to
cure,
within thirty (30) days of Employer's giving of such notice, the
acts,
events or conditions which led to Employer's notice. For purposes
of this
Agreement, "just cause" shall mean (1) the willful failure or refusal
of
Employee to implement or follow the written policies or directions
of
Employer's Board of Directors, provided that Employee's failure or
refusal
is not based upon Employee's belief in good faith, as expressed to
Employer in writing, that the implementation thereof would be unlawful;
(2) conduct which is inconsistent with Employee's position with Employer
and which results in a material adverse effect (financial or otherwise)
or
misappropriation of assets of Employer; (3) conduct which violates
the
provisions contained in the Confidentiality Agreement or the
Non-Competition Agreement; (4) the intentional causing of material
damage
to Employer's physical property; and (5) any act involving personal
dishonesty or criminal conduct against
Employer.
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Although
Employer retains the right to terminate Employee for any reason not specified
above, Employer agrees that if it discharges Employee for any reason other
than
just cause, as is solely defined above, Employee will be entitled to participate
in all benefit programs, for one year or the remainder of the current term,
original or renewal, as the case may be, of employment, whichever is
more.
If
Employee should cease his employment hereunder voluntarily for any reason,
or is
terminated for just cause, all compensation and benefits payable to Employee
shall thereupon, without any further writing or act, cease, lapse and be
terminated. However, all defined compensation, benefits and reimbursements
which
accrued prior to Employee's ceasing employment or termination, will become
immediately due and payable and shall be payable to Employee’s estate should his
employment cease due to death.
SECTION
VII. COMPLETE AGREEMENT
This
Agreement contains the complete agreement concerning the employment arrangement
between the parties hereto and shall, as of the effective date hereof, supersede
all other agreements between the parties. The parties hereto stipulate that
neither of them has made any representation with respect to the subject matter
of this Agreement or any representations including the execution and delivery
hereof, except such representations as are specifically set forth herein and
each of the parties hereto acknowledges that he or it has relied on his or
its
own judgment in entering into this Agreement. The parties hereto further
acknowledge that any payments or representations that may have heretofore been
made by either of them to the other are of no effect and that neither of them
has relied thereon in connection with his or its dealings with the
other.
SECTION
VIII. WAIVER; MODIFICATION
The
waiver by either party of a breach or violation of any provision of this
Agreement shall not operate as, or be construed to be, a waiver of any
subsequent breach hereof. No waiver or modification of this Agreement or of
any
covenant, condition or limitation herein contained shall be valid unless in
writing and duly executed by the party to be charged therewith and no evidence
of any waiver or modification shall be offered or received in evidence of any
proceeding or litigation between the parties hereto arising out of, or
affecting, this Agreement, or the rights or obligations of the parties
hereunder, unless such waiver or modification is in writing, duly executed
as
aforesaid, and the parties further agree that the provisions of this Section
IX
may not be waived except as herein set forth.
SECTION
IX. SEVERABILITY
All
agreements and covenants contained herein are severable, and in the event any
one of them, with the exception of those contained in Sections I, III, IV and
V
hereof, shall be held to be invalid in any proceeding or litigation between
the
parties, this Agreement shall be interpreted as if such invalid agreements
or
covenants were not contained herein.
SECTION
X. NOTICES
Any
and
all notices will be sufficient if furnished in writing, sent by registered
mail
to his last known residence, in case of Employee, or, in case of Employer,
to
its principal office address.
SECTION
XI. CORPORATE AUTHORITY OF EMPLOYER
The
execution of this Agreement by Employer has been approved by the Board of
Directors of Employer.
SECTION
XII. REPRESENTATIONS OF EMPLOYEE
| A. |
Employee
hereby represents to Employer that he is under no legal disability
with
respect to his entering into this
Agreement.
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| B. |
Receipt
of Disclosure. Employee hereby represents and warrants that he has
received and reviewed (1) Employer’s Annual Reports on Form 10-KSB, as
filed with the SEC, (2) Employer’s Quarterly Reports on Form 10-QSB, as
filed with the SEC, (3) Employer’s Current Reports on Form 8-K, as amended
and as filed with the SEC,. With respect to such information, Employee
further represents and warrants that he has had an opportunity to
ask
questions of, and to receive answers from, the officers of
Employer.
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| C. |
Representations
Relating to Employer Common Stock. Employee represents and warrants
to
Employer that the shares of Employer common stock being acquired
pursuant
to this Employment Agreement are being acquired for his own account
and
for investment and not with a view to the public resale or distribution
of
such shares and further acknowledges that the shares being issued
have not
been registered under the Securities Act or any state securities
law and
are “restricted securities”, as that term is defined in Rule 144
promulgated by the SEC, and must be held indefinitely, unless they
are
subsequently registered or an exemption from such registration is
available.
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| D. |
Consent
to Legend. Employee consents to the placement of a legend restricting
future transfer on the share certificates representing the Employer
common
stock delivered hereunder, which legend shall be in the following,
or
similar, form:
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“THE
STOCK REPRESENTED BY THIS CERTIFICATE HAS BEEN ISSUED IN RELIANCE UPON THE
EXEMPTION FROM REGISTRATION AFFORDED BY SECTION 4(2) OF THE SECURITIES ACT
OF
1933, AS AMENDED. THE STOCK MAY NOT BE TRANSFERRED WITHOUT REGISTRATION EXCEPT
IN TRANSACTIONS EXEMPT FROM SUCH REGISTRATION.”
SECTION
XIII. COUNTERPARTS
This
Agreement may be executed in duplicate counterparts, each of which shall be
deemed an original and, together, shall constitute one and the same agreement,
with one counterpart being delivered to each party hereto.
SECTION
XIV. BENEFIT
The
provisions of this Agreement shall extend to the successors, surviving
corporations and assigns of Employer and to any purchaser of substantially
all
of the assets and business of Employer. The term "Employer" shall be deemed
to
include Employer, any joint venture, partnership, limited liability company,
corporation or other juridical entity, in which Employer shall have an interest,
financial or otherwise.
SECTION
XV. ARBITRATION
The
parties agree that any dispute arising between them related to this Agreement
or
the performance hereof shall be submitted for resolution to the American
Arbitration Association for arbitration in the Denver, Colorado, office of
the
Association under the then-current rules of arbitration. The Arbitrator or
Arbitrators shall have the authority to award to the prevailing party its
reasonable costs and attorneys fees. Any award of the Arbitrators may be entered
as a judgment in any court competent jurisdiction.
Notwithstanding
the provisions contained in the foregoing paragraph, the parties hereto agree
that Employer may, at its election and without delivering the notice to Employee
required in Section VI(B) hereof, seek injunctive or other equitable relief
from
a court of competent jurisdiction for a violation or violations by Employee
of
the Confidentiality Agreement or the Non-Competition Agreement.
SECTION
XVI. LEGAL REPRESENTATION
Employer
and Employee both acknowledge that each has utilized separate legal counsel
with
respect to this Agreement. Specifically, Employee acknowledges that the law
firm
of Xxxxxxxxxxx Xxxxxxx has drafted this Agreement on behalf of Employer.
EMPLOYEE
IS ADMONISHED TO SEEK HIS OWN LEGAL COUNSEL.
SECTION
XVII. GOVERNING LAW
It
is the
intention of the parties hereto that this Agreement and the performance
hereunder and all suits and special proceedings hereunder be construed in
accordance with and under and pursuant to the laws of the State of Colorado,
and
that, in any action, special proceeding or other proceeding that may be brought
arising out of, in connection with or by reason of this Agreement, the laws
of
the State of Colorado shall be applicable and shall govern to the exclusion
of
the law of any other forum, without regard to the jurisdiction in which any
such
action or special proceeding may be instituted.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
17th day of September, 2006.
| Friendlyway Corp | ||
| By: |
/s/
Xxxxxxx X. Xxxxxxx
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|
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Xxxxxxx
X. Xxxxxxx
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President
and CEO
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/s/
Xxxxxx Xxxx
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Xxxxxx
Xxxx
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Exhibit
“A”
Confidentiality
Agreement
September
17, 2006
PSI
Corp.
0000
Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
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Re:
|
Confidentiality
Agreement
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Gentlemen:
In
connection with the execution of an employment agreement (the “Employment
Agreement”) between the undersigned and PSI Corp. (together with affiliates, the
“Company”), the Company will furnish to the undersigned certain information
concerning its business, financial position, operations, business contacts,
assets and liabilities. As a condition to such information’s being furnished to
the undersigned and as a condition to the undersigned’s entering into an
employment agreement with the Company, the undersigned agrees to treat any
information concerning the Company (whether prepared by the Company, its
advisors, or otherwise, and irrespective of the form of communication) which
is
furnished to the undersigned now or in the future by or on behalf of the Company
(together with the material described below, herein collectively referred to
as
the “Confidential Material”) in accordance with the provisions of this letter
agreement, and to take or abstain from taking certain other actions hereinafter
set forth.
The
undersigned understands that the term “Confidential Material” also includes all
notes, analysis, compilations, studies, interpretations or other documents
prepared by the Company or its representatives which contain, reflect or are
based upon, in whole or in part, the information furnished to the undersigned.
The term “Confidential Material” does not include information which (A) is or
becomes generally available to the public other than as a result of a disclosure
by the undersigned, or (B) was lawfully within the undersigned’s possession
prior to its being furnished to the undersigned by or on behalf of the Company,
provided that the source of such information was not known by the undersigned
to
be bound by a confidentiality agreement with, or other contractual, legal or
fiduciary obligation of confidentiality to, the Company or any other party
with
respect to such information, or (C) is disclosed to the undersigned by a third
party, provided that such third party was not known by the undersigned to be
bound by a confidentiality agreement with, or other contractual, legal or
fiduciary obligation of confidentiality to, the Company or any other party
with
respect to such information.
The
undersigned hereby agrees that he will use the Confidential Material solely
in
connection with the undersigned’s performance of his duties under the employment
agreement, that the Confidential Material will be kept confidential and that
the
undersigned will not disclose any of the Confidential Material in any manner
whatsoever.
The
undersigned hereby agrees that he shall not reverse engineer, reverse assemble
or otherwise attempt to recreate or duplicate any model or working model capable
of performing the functions of any portion or all of the Company’s Wireless
Internet access system included in the Confidential Material.
In
the
event that the undersigned is requested or required (by oral questions,
interrogatories, requests for information or documents in legal proceedings,
subpoena, civil investigative demand or other similar process) to disclose
any
of the Confidential Material, the undersigned will provide the Company with
prompt written notice of any such request or requirement so that the Company
may
seek a protective order or other appropriate remedy and/or waive compliance
with
the provisions of this letter agreement. If, in the absence of a protective
order or other remedy or the receipt of a waiver by the Company, the undersigned
is, nonetheless, in the opinion of counsel, legally compelled to disclose
Confidential Material, the undersigned may, without liability hereunder,
disclose only that portion of the Confidential Material specifically required
by
an order of Court. Additionally, the undersigned shall make every reasonable
effort and take every reasonable action, including, without limitation, by
cooperating with the Company, to obtain an appropriate protective order or
other
reliable assurance that confidential treatment will be accorded the Confidential
Material.
Upon
termination of the Employment Agreement or at any time upon the request of
the
Company, the undersigned will promptly deliver to the Company or certify
destruction of, at the Company’s direction, all Confidential Material (and all
copies thereof) furnished to the undersigned by or on behalf of the Company
pursuant hereto. All oral Confidential Material provided to the undersigned
shall continue to be held confidential hereunder. Notwithstanding the return
or
destruction of the Confidential Material, the undersigned will continue to
be
bound by obligations of confidentiality hereunder.
The
undersigned agrees that the Company, without prejudice to any rights to judicial
relief he may otherwise have, shall be entitled to equitable relief, including
injunctive relief and specific performance, in the event of any breach of the
provisions of this letter agreement and that the undersigned will not oppose
the
granting of such relief. The undersigned also agrees that he will not seek
and
agrees to waive any requirement for the securing and posting of a bond in
connection with the Company’s seeking or obtaining such relief. In the event of
litigation relating to this letter agreement, if a court of competent
jurisdiction determines that the undersigned has breached this letter agreement,
then the undersigned will be liable to pay to the Company the reasonable legal
fees incurred in connection with such litigation, including any appeal
therefrom. Also, in the event a court of competent jurisdiction determines
that
the undersigned has not breached this letter agreement, then the Company will
be
liable to pay to the undersigned the reasonable legal fees incurred in
connection with such litigation, including any appeal therefrom.
This
letter agreement is for the benefit of the Company, and shall be construed
(both
as to validity and performance) and enforced in accordance with, and governed
by, the laws of the State of Colorado applicable to agreements made and to
be
performed wholly within such jurisdiction. This letter agreement shall remain
in
full force and effect until the earlier of the date that is three years from
the
termination of the undersigned’s employment by the Company or the date that this
agreement is terminated by the Company.
Please
confirm your agreement with the foregoing by signing and returning one copy
of
this letter to the undersigned whereupon this letter agreement shall become
a
binding agreement.
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Very
truly yours,
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/s/
Xxxxxxx X. Xxxxxxx
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|
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Xxxxxxx
X. Xxxxxxx
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|
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President
and CEO
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AGREED
AND ACCEPTED as
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of
the date first written above:
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By:
/s/ Xxxxxx Xxxx
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Xxxxxx
Xxxx
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Exhibit
“B”
Agreement
Not to Compete
AGREEMENT
NOT TO COMPETE
THIS
AGREEMENT NOT TO COMPETE is entered into by and between PSI Corp., a Nevada
corporation (“Employer”), and Xxxxxx Xxxx (“Employee”).
WHEREAS,
Employee is employed by Employer as Chief Operations Officer, pursuant to an
employment agreement (the “Employment Agreement”); and
WHEREAS,
as a condition to such employment, Employee has agreed to sign and be bound
by
this Agreement Not to Compete; and
NOW,
THEREFORE, the parties agree as follows:
Section
1. Covenant Not to Compete. Employee acknowledges that, as a key management
employee of Employer, Employee will be involved, on a high level, in the
development, implementation and management of the national and international
business strategies and plans of Employer, which shall consist of Employer
and
such other business units, divisions, subsidiaries or other entities of Employer
as Employer shall determine in its sole discretion from time to time. By virtue
of Employee’s unique and sensitive position and special background, employment
of Employee by a competitor of Employer represents a serious competitive danger
to Employer, and the use of Employee’s talent and knowledge and information
about Employer’s business, strategies and plans can and would constitute a
valuable competitive advantage over Employer. In view of the foregoing, Employee
covenants and agrees that, if (i) Employee’s employment with Employer is
terminated for just cause or (ii) if Employee voluntarily resigns from his
employment with Employer, then, for a period of one year after the date of
such
termination, Employee will not engage or be engaged as, in any capacity,
directly or indirectly, including, but not limited to, employee, agent,
consultant, manager, executive, owner or stockholder (except as a passive
investor holding less than 5% equity interest in any enterprise the securities
of which are publicly traded) in any business entity engaged in competition
with
any business conducted by Employer relating to the digital signage industry,
financial kiosk industry, digital signage marketing or marketing of financial
kiosk systems and/or digital advertising on the date of termination. Business
entities that are strictly engaged in ATM deployment, repair, sale, design,
etc., and/or in non-competitive verticals and business lines, are exempt from
provision. Employee further agrees that, if his employment shall cease pursuant
to the change-in-control provision of the Employment Agreement, then, for so
long thereafter as Employee shall receive compensation under the Employment
Agreement, Employee shall not engage in the activities prohibited by the
preceding sentence. This Agreement Not to Compete shall survive the termination
or expiration of the Employment Agreement. If any court determines that this
Agreement Not to Compete, or any part hereof, is unenforceable because the
duration or geographic scope of such provision, such court shall have the power
to reduce the duration or scope of such provision, as the case may be, and,
in
its reduced form, such provision shall then be enforceable.
For
purposes of this Agreement, “just cause” shall have the same meaning as set
forth in Section VII (B) of the Employment Agreement of even date between the
parties.
Section
2. Continuing Obligations. Employee agrees that, for one year following (i)
his
termination of employment with Employer for just cause or (ii) his resignation
as an employee of Employer, Employee shall keep Employer informed of the
identification of Employee’s employer and the nature of such employment or of
Employee’s self-employment. Employer agrees that, within fifteen days after
receiving notice pursuant to this Section 2 of the identification of the
prospective employer, the nature of the employment or self-employment or any
change therein, Employer will advise Employee as to whether such employment
constitutes a violation of Section 1 hereof. Section 3. Injunctive Relief.
Employee acknowledges that the violation of the covenants contained in this
Agreement would be detrimental and cause irreparable injury to Employer and
its
affiliates which could not be compensated by money damages. Employee agrees
that
an injunction from a court of competent jurisdiction is the appropriate remedy
for these provisions, and consents to the entry of an appropriate judgment
enjoining Employee from violating these provisions in the event there is a
find
of their breach.
Section
4. Severability of Covenants. Each of the covenants contained in this Agreement
are independent covenants, which may be available to or relied upon by Employer
and its affiliates in any court of competent jurisdiction. If any one of the
separate and independent covenants shall be deemed to be unenforceable under
the
laws of any state of competent jurisdiction, each of the remaining covenants
shall not be affected thereby. Notwithstanding the provisions of this Section
4,
it is understood that every benefit received by Employee by virtue of this
Agreement is consideration for each separate covenant contained
herein.
Section
5. Governing Law. This Agreement shall be governed by the laws of the State
of
Colorado.
Section
6. Other Remedies. The undertakings herein shall not be construed as any
limitation upon the remedies
Employer
might, in the absence of this Agreement, have at law or in equity.
INTENDING
to be legally bound hereby, Employer and Employee hereby duly execute this
Agreement Not to Compete as of the date indicated below.
| PSI CORP. | |||
|
Date:
September 17, 2006
|
By: |
/s/
Xxxxxxx X. Xxxxxxx
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Xxxxxxx
X. Xxxxxxx
|
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President
and CEO
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Date:
September 17, 2006
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/s/
Xxxxxx Xxxx
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Xxxxxx
Xxxx
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