EXHIBIT 10.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of the
first day of October 1999, by and between PayStar Communications Corporation, a
Nevada corporation, ("Employer"), and Xxxx XxXxx ("Employee").
WITNESSETH:
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, receipt of which is
hereby acknowledged, the parties agree as follows:
1. Employment: Employer hereby employs Employee, and Employee hereby
accepts employment with Employer, on the terms and conditions set forth herein.
2. Duties:
(a) Employee shall advise and counsel the Board of Directors of Employer
on all matters pertaining to the business, affairs, and activities of Employer,
handle such affairs of Employer, Employer subsidiary(ies), affiliate(s), or
parent as the Board of Directors of Employer shall determine from time to time,
and act in such offices or capacities as the Board shall request,
(b) So long as he shall be elected to such offices, Employee shall
continue to occupy the positions of and perform all the acts and duties of
President. Employer's Board of Directors may extend or modify Employee's duties
and titles from time to time.
(c) Employee shall be required to devote his entire time, ability and
attention to the business of Employer.
3. Term: Subject to the provisions for termination as herein provided, the
term of employment of Employee shall be three (3) years, beginning October 1,
1999, and ending September 30, 2002. Thereafter, this Agreement shall
automatically be renewed for a renewal term of one (1) year after the expiration
of the initial three year term, and for successive one-year renewal terms
thereafter, unless either party gives the other written notice ("Notice") to
terminate the Agreement at the expiration of the initial three year term or of
the first renewal term or of any such successive renewal term. The Notice must
be given at least ninety (90) days prior to the expiration of any such term;
and, provided further, that in any event the automatic renewal clause in this
Agreement shall not be effective to renew this Agreement in excess of three (3)
terms of one (1) year each.
4. Compensation:
(a) Base Salary. The compensation to be paid Employee by Employer for
all services rendered to Employer during the term of this Agreement, including
services as an officer, director, or member of any committee of Employer, or of
a parent or subsidiary of Employer, shall be determined by the Board of
Directors of Employer, but in no event shall such annual
salary be less than three hundred thousand dollars ($300,000.00) ("Base
Salary"), payable in bi-monthly installments in arrears, on the 15th and the
last day of the month after the effective date hereof. The Base Salary shall be
reduced by income tax and other applicable withholdings, and may be payable by
Employer, or by a parent or subsidiary of Employer, at the Employer's
discretion.
(b) Bonus. In addition to his Base Salary the Employee shall be paid a
bonus in each fiscal year that he is employed by the Employer pursuant to the
terms of this Agreement in an amount not less to one percent (1%) of the net
income of Employer, and not more that four percent (4%) of the net income for
that fiscal year.
5. Vacation: Employee shall be entitled each year to a vacation of not less
than three (3) weeks, during which time his compensation shall be paid in full.
For vacation purposes, a year shall be deemed to run from July 1 to June 30.
6. Working Facilities: Employee shall be furnished with a private office,
stenographic and other necessary secretarial assistance, and such other
facilities, amenities and services as are presently or may be hereinafter
furnished to senior management officers of Employee and as are appropriate for
Employee's position and adequate for the performance of his duties.
7. Other Benefits
(a) Employee shall be entitled to participate on a basis consistent with
other executive employees of Employer in pension, profit-sharing, stock option,
deferred compensation, savings, hospitalization, medical, disability, and life
insurance programs in accordance with such plans as Employer or its corporate
parent may now have in effect or may adopt from time to time in the future.
(b) Employer shall provide a monthly automobile allowance not to exceed
$800.00, either in the form of a direct automobile payment or a salary increase
to Employee.
(c) Employee shall also receive such other additional compensation,
rights and other benefits as the Board of Directors of Employer shall from time
to time, in its absolute and sole discretion, grant to him. (d) The benefits and
perquisites provided from time to time to the Employee may not be unilaterally
reduced or diminished by the Employer.
8. Expenses: Employee is authorized to incur on behalf of Employer expenses
in connection with the performance of his duties hereunder or in promoting or
furthering the business of Employer, including dues for social clubs, expenses
for entertainment, travel, lodging and similar items, in accordance with the
standards and policies that the Board of Directors of Employer may establish
from time to time. All such expenses are to be paid, insofar as possible, by use
of credit cards in Employer's name furnished to Employee. Any such charges that
cannot be charged an a credit card may be paid for directly by Employee, who
shall be reimbursed by Employer upon the submission to Employer's Treasurer of
an itemized account of such expenditures.
9. Location: The office at which Employee will be employed is located in
Modesto,
California. Employer will not be required to relocate outside of the Stanislaus
County, California, area without his voluntary consent. The withholding of such
consent shall not be grounds for any action taken against Employee.
10. Confidentiality: Except as required in the ordinary course of
Employer's Business, Employee shall hold in confidence and not disclose to any
person or entity without the express prior written authorization of Employer,
either during the term of this Agreement or any time thereafter, the names or
addresses of any of Employer's customers; Employer's past or prospective
dealings with its customers; the parties, dates, or terms if any of Employer's
contracts; any information, trade secrets, systems, processes or business
methods, or any other secret or confidential matter relating to the customers or
the business affairs of Employer or any companies affiliated with Employer.
Employee acknowledges that in the course of performing his duties he may have
access to confidential information, the ownership and confidential status of
which are highly important to Employer and he agrees to comply with all known
policies and procedures of Employer for the protection of said confidential
information. The term "confidential information" as used in this Agreement means
(1) proprietary information of Employer including, but not limited to, formulas,
procedure, processes, materials, client lists and vendor lists (2) information
marked or designated by Employer as confidential (3) information whether or not
in written form which is known by the Employee to be treated by Employer as
confidential and (4) information provided to employee by third parties which
Employer is obligated to keep confidential. Employee agrees as follows:
(a) That he will not copy, transmit, reproduce, summarize, quote or make
any commercial or other use whatsoever of Employer's confidential information
except as may be necessary in the performance of his duties for Employer.
(b) Employee agrees to exercise the highest degree of care in
safeguarding Employer's confidential information against loss, theft or other
inadvertent disclosure and agree generally to take all steps necessary to ensure
the maintenance of confidentiality.
(c) Upon termination of his employment, or as otherwise requested by
Employer, will deliver promptly to Employer all of Employer's confidential
information in whatever form that may be in their possession or under their
control.
(d) Employee agrees not to disclose Employer's confidential information
directly or indirectly under any circumstances or by any means to any third
person without the express written consent of Employer.
11. Non-Competition: While employed and for a period of one yew after the
termination of employment, Employee shall not, without the prior written consent
of Employer, compete with Employer, its subsidiaries, successors, or assigns,
either directly or indirectly, as an owner, member, partner, employee, officer,
director or agent of any sole proprietorship, association, partnership or
corporation. For the purposes of this Paragraph, the terms "compete" and
"competition" and "competitor" shall refer to: ATM script and pre-paid products.
Should any term or condition of these covenants against competition be
found to be unreasonable or excessive by any court of competent jurisdiction,
the parties agree to accept as binding in lieu thereof any lesser restrictions
which said court may deem reasonable.
Both Employer and the Employee recognize that no adequate remedy at law
exists in which to enforce the terms and conditions of this Agreement.
Therefore, in the event the Employee breaches the confidential or covenant
not-to-compete provisions of this Agreement, then Employer shall be entitled to
injunctive relief prohibiting the continued breaches of the Agreement by the
Employee.
12. Right to Employer Materials: Employee agrees that all documents are
intangible media relating to Employer's Business, including, but not limited to
the following; advertising literature, drawings, blueprints, notes, memorandum,
specification, devices, mechanical pads, formula, lists, materials, books,
files, reports, correspondence, records and other documents ("Employer
Materials") relating to the Business of Employer, shall remain the property of
Employer. Employer Materials constitute trade secrets of Employer and shall not
be disclosed to any other party except as expressly authorized by Employer. Upon
termination of employment, for any reason, all Employer Materials shall be
returned immediately to Employer, and Employee shall not make or retain any
copies thereof. Employee acknowledges and agrees that any knowledge, information
and materials in Employee's possession relating to the Business which Employee
possessed prior to the transfer of the Business to Employer, shall also be
deemed to constitute part of Employer Materials for purposes of this Section.
13. Inventions and Patents: Employee agrees that he will promptly and from
time to time fully inform and disclose to Employer all inventions, designs,
improvements, and discoveries which he now has or may hereafter have during the
term of this Agreement which pertain to or relate to the Business of Employer or
to any experimental work carried on by Employer, whether conceived by the
Employee alone or with others and whether or not conceived during regular
working hours. All such inventions, designs, improvement and discoveries shall
be the exclusive property of Employer. Employee shall assist Employer to obtain
patents on all such inventions, designs, improvements, and discoveries deemed
patentable by Employer and shall execute all documents and do all things
necessary to obtain letters patent, vest Employer with full and exclusive title
thereto, and protect the same against infringement by others. This provision
shall apply with equal force and effect to any items that may be subject to
copyright or trademark protection. This provision does not apply to an invention
for which no equipment, supplies, facility or trade secret information of the
Employer was used and which was developed entirely on the Employee's own time,
and (a) which does not relate, at the time the invention is conceived or reduced
to practice, to (1) the Business of Employer, or (2) actual or demonstrably
related anticipated research or development of Employer; or (b) which does not
result from any work performed by the Employee for the Employer. The provisions
set forth in the preceding sentence shall not, however, in any way authorize
Employee to engage in any such activities set forth therein in contravention of
the provisions of his duties and obligations hereunder.
14. Termination.
(a) The employment of Employee may be terminated at any time by:
(i) Mutual written agreement; or
(ii) The death of Employer; or
(iii) Action of the Board of Directors of Employer if Employee is
in material and willful default in the performance of his obligations,
services, or duties hereunder, or has materially and willfully breached any
provision of this Agreement or the Stockholders Agreement, or has committed
any act of dishonesty, fraud, misrepresentation, or other act of moral
turpitude that would prevent the effective performance of Employee's duties; or
(iv) Action of Employee if Employer is in default in the
performance of its Obligations or duties hereunder, or has breached any
provision of this Agreement or the Stockholders Agreement; or has committed
any act of dishonesty, fraud, misrepresentation, or other act of moral
turpitude that would prevent the effective performance of Employee's duties; or
(v) Either party in the event Employee shall not be elected to the
office of President of Employer. In the event Employer terminates the employment
pursuant to this provision, Employer shall continue to pay Employee for the
remainder of the term of the Agreement the compensation specified in paragraph 4
of this Agreement, except and to the extent that Employee is being paid more
than the minimum amount set forth in paragraph 4, then Employee shall be
entitled to the remaining payments at the increased rate; however, the other
benefits to which Employee is entitled pursuant to paragraph 7 of this Agreement
shall not continue for the remainder of the term of this Agreement; or
(vi) A determination by the Board of Directors that the Employee
has become so physically or mentally disabled as to be incapable of
satisfactorily performing his duties under this Agreement for a period of
ninety (90) consecutive days.
(b) Thirty (30) days' written notice to the other party shall be given
prior to termination by either party followed by a reasonable time within which
to cure as to termination under subparagraphs 14(a)(i), (iii), (iv), (v) or
(vi).
(c) Termination under subparagraphs 14(a)(iii) or (iv) shall not be in
limitation of any other right or remedy which the terminating party may have
under this Agreement or otherwise, however, if this Agreement is terminated
pursuant to paragraph 14(a)(iii) hereof, the Employee shall not be required to
mitigate damages otherwise obtainable from the Employer as a result thereof and
any income received by the Employee after such termination shall not reduce the
amount of damages otherwise obtainable from the Employer hereunder.
(d) All obligations of Employer hereunder shall terminate upon the death
of Employee except:
(i) Employer shall pay to the spouse of Employee the compensation as
set forth in subparagraph 4 for the remaining initial or renewal term of this
Agreement. If Employee does not have a surviving spouse at that time, Employer
agrees to pay Employee's designee or estate said sums;
(ii) To the extent that Employee by reason of his death becomes
entitled to benefits under any group life insurance policy provided by Employer
hereunder.
15. Successors and Assigns. The rights and obligations of Employer under
this
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of Employer, and the rights and obligations of Employee under this
Agreement shall inure and be binding upon his heirs, executors and
administrators.
16. Definitions: For purposes of this Agreement unless the context
indicates otherwise, the term Employer shall be deemed to also include any
corporation which is in control of, controlled by or under common control with
Employer, whether or not Employee is directly employed by such other corporation
or corporations.
17. Notices: Any notice to be given to Employer under the terms of this
Agreement shall be addressed to the Chairman of Employer's Board of Directors,
and any notice to be given to Employee shall be addressed to him at his home
address last shown on the records of Employer, or at such other address as
either party may hereafter designate in writing to the other. Any such notice
(except notice of a change of address) shall have been deemed duly given when
enclosed in a properly sealed envelope or wrapper addressed as aforesaid,
registered or certified, and deposited (postage and registry or certification
fee prepaid) in a post office or branch post office regularly maintained by the
United States Government. Notice of a change of address shall be deemed given
only when received.
18. Waiver: Either party's failure to enforce any provision or provisions
of this Agreement shall not in any way be construed as a waiver of any such
provision or provisions, or prevent that party thereafter from enforcing each
and every other provision of this Agreement. The rights granted both parties
herein are cumulative and shall not constitute a waiver of either party's right
to assert all other legal remedies available to it under the circumstances.
19. Governing Law and Binding Effect: This Agreement shall be interpreted
and construed in accordance with the laws of the State of California and shall
inure to the benefit of and be binding upon the parties hereto and their heirs,
personal representatives, successors and assigns.
20. Captions and Paragraph Headings: Captions and paragraph headings used
herein are for convenience only, are not a part of this Agreement, and shall not
be used in construing it.
21. Severability: The invalidity or unenforceability of any provision
hereof or any part of any provision hereof shall in no way affect the validity
or enforceability of any other provision or part hereof, and this Agreement
shall be interpreted, construed and enforced as though the invalid or
unenforceable provision were not contained herein.
22. Counterparts: This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
23. Entire Agreement: This Agreement supersedes all prior agreements and
understanding between the parties and may not be modified or terminated orally.
No modification, termination, or attempted waiver shall be valid unless in
writing and signed by the
party against whom the same is sought to be enforced.
IN WITNESS WHEREOF, the parties have duly executed this Agreement on the
date and year first set forth above.
EMPLOYER PayStar Communications Corporation
A Nevada Corporation
By: /s/ Xxxxxxx X. Xxxxx, Chairman
By: /s/ Xxx Xxxxxxx, Secretary
EMPLOYEE /s/ Xxxx XxXxx
