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EXHIBIT 6.3
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is dated as of May 28, 1999, between
DebitFone International, Inc., a Florida corporation, Satellite Control
Technology, Inc., a Nevada corporation ("the Companies"), and Xxxxxxx Xxxxxx
("Employee").
WHEREAS, the Companies are presently in the business of selling and
reselling domestic and international telecommunications services; and
WHEREAS, Employee desires to become employed by the Companies as
President/CEO for the Companies and the Companies desire to employ Employee in
such capacity pursuant to the terms hereof; and
WHEREAS, in such capacity, Employee has agreed to be responsible for all
day-to-day operations of the Companies as more fully provided herein, all
subject to the direction of the Board of Directors of Satellite Control
Technology, Inc., the Parent Company.
NOW, THEREFORE, in consideration of the mutual promises and conditions
contained herein, and other good and valuable consideration, the adequacy of
which the parties hereby acknowledge, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. EMPLOYMENT OF EMPLOYEE. The Companies hereby employ Employee, and
Employee hereby accepts employment, as President/CEO of the Companies upon the
terms and conditions of this Agreement.
2. TERMS OF AGREEMENT. This Agreement shall remain in force and effect
for a five (5) year period commencing on June 1, 1999 (the "Employment Date")
and ending at the close of business on May 31, 2002, unless sooner terminated
pursuant to paragraph 9 below (the "Initial Term"). At the end of the Initial
Term, the Companies may, in its sole discretion, extend the term of this
Agreement for up to three additional successive one-year periods (each such
one-year period referred to herein as a "Renewal Term") by providing written
notice to the Employee at least ninety (90) days prior to the expiration of the
Initial Term or of any Renewal Term, as applicable. (The Initial Term together
with any Renewal Term(s) granted by the Companies is sometimes collectively
referred to herein as the "Term").
3. EMPLOYEE'S DUTIES. During the Term of this Agreement, Employee shall
serve as President/CEO for the Companies, and be responsible for all the
day-to-day activities of the companies. All activities including but not
limited to the foregoing activities shall be conducted by Employee under the
direction of and subject to the control of the Board of Directors of Satellite
Control Technology, Inc., the Parent Company.
4. LOYALTY TO THE COMPANY. Employee shall devote his full time,
attention and efforts to the business and affairs of the Companies and to the
performance of his duties and responsibilities during the Term hereof. Employee
shall owe his full loyalty to the Companies and shall not engage in any
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activity or enter into any transaction that would or might constitute a
conflict of interest, or the appearance thereof, with the duties and loyalties
owed by him to the Companies. Without limiting the foregoing, Employee agrees
that during the Term of this Agreement, Employee will not engage in any
business activity other than those duties described in this Agreement, whether
or not such business is pursued for gain or profit, or other pecuniary
advantage. However, Employee may invest his assets in such form or manner as
will not require his services in the operation of the affairs of the companies
in which such investments are made, provided that such investments are not
wholly or in part based upon confidential information obtained in his
employment with the Companies. If any such investment is contemplated to be
made with a competitor of the Companies, the specific nature and amount of the
investment shall be disclosed to the Companies in writing prior to such
investment and such investment may not be made without the prior approval in
writing of the Board of Directors of the Parent Company.
5. SALARY.
(a) BASE SALARY. In consideration of the performance by the Employee of
the duties and obligations contained in this Agreement, the Company
shall pay Employee an initial gross salary of $104,000 per year,
payable bi-monthly in accordance with the normal payroll practices of
the Company. Any amounts shall be prorated for periods less than a
month. Salary payments shall be subject to withholding and other
applicable taxes. The aforementioned initial salary will be subject to
review by the Companies, which may decide, in its sole discretion to
raise such salary. Such review shall occur annually on or about each
Employment Date anniversary.
6. BONUS ELIGIBILITY.
(a) STOCK OPTIONS. In addition to the base salary described in
paragraph 5 above, Employee shall be eligible to receive an
option to purchase up to 500,000 shares of the common stock of
SATX annually commencing on the first anniversary date of this
Agreement. The exercise price of the options shall be fifty cents
($.50) per share in year one. Thereafter, the exercise price of
the options shall be as follows:
Year 2. Sixty percent (60%) of the trading price as of the date
of the grant.
Year 3. Seventy percent (70%) of the trading price as of the date
of the grant.
Year 4. Eighty percent (80%) of the trading price as of the date
of the grant.
Year 5. Ninety percent (90%) of the trading price as of the date
of the grant.
The actual number of shares awarded to Employee each year shall
be dependent upon the pre-tax profit of SATX. For example, should
SATX meet its projected pre-tax profit (as approved by the Board
of Directors) for the year, Employee shall be entitled to an
option grant of 500,000 shares. However, if SATX's pre-tax profit
is only 50% of projections, then Employee shall be entitled to a
grant of 250,000 shares. Employee shall not be entitled to more
than 500,000 shares if SATX exceeds the projection.
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The option shall fully vest upon the date of the grant and shall
expire if not exercised within five (5) years of the date of the
grant.
(b) ADDITIONAL BONUS. The Employee may be eligible for an additional
performance bonus with an equivalent value of thirty percent
(30%-50%) of the Employee's base salary on a quarterly basis. The
Companies shall determine Employee's eligibility for such
additional bonus based upon certain performance criteria
described in Exhibit A, (SATX projected pre-tax profit as
approved by the Board of Directors). The performance criteria
shall be evaluated by the Company achieving (80%-120%) of the
projected pre-tax profits in such exhibit on a quarterly basis.
If the Companies determine that such performance goals have been
achieved, the Employee shall have the option to receive the bonus
in cash or common stock in the Parent Company; (SATX) at 90% of
average market price of the shares of the Company over last
thirty (30) days prior to issue. If at the end of the year
volumes are made up to cover any quarters that volumes were not
met and the bonus was not paid, the company will offer the bonus
for that quarter. As additional responsibilities for assumed
acquisitions by (SATX) occur projections will be subsequently
attached as exhibits to this contract and bonus eligibility will
be the same formula as for DebitFone International, Inc. The
sliding scale used in the calculation of bonus is:
Level of Company Performance 80% 100% 120%
Payout % of Employee annual salary 30% 40% 50%
7. BENEFITS. Employee shall be entitled to receive benefits made
available to other executive officers within the Companies consistent with the
policies and practices of the Company effected from time to time. As of the
Employment Date, these benefits include insurance benefits.
8. BUSINESS EXPENSES. Employee may incur expenses in connection with
the performance of his duties as President/CEO for the Companies, including
expenses for business travel, meals, lodging and similar items. The Companies
will reimburse Employee for all such customary, reasonable and necessary
expenses upon Employee's periodic presentation of an itemized and documented
account of such expenditures and in accordance with the Company's expense
reimbursement policies, which are in effect at the time the expense is incurred.
9. TERMINATION.
(a) TERMINATION BY THE PARENT COMPANY; (SATX).
i. FOR CAUSE. The Parent Company may terminate the Employee's
employment with the Companies at any time for "cause," which
termination shall be effective immediately upon written notice to
Employee. The Companies shall pay base salary through the date of
termination and have no further obligations to Employee as of the
date of termination. For purposes of this Agreement, "cause" is
defined to mean such act, omission or course of conduct which the
Companies determine is (1) a willful violation of any of the
provisions of this Agreement; (2) willful misconduct
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which is demonstrably injurious to the Companies, monetarily or
otherwise; (3) the commission of a felony involving the Companies
and/or its business and suggesting moral turpitude on the part of
the Employee, whether or not the Employee ultimately is
indicted, arraigned or convicted; (4) improper or unethical
business activity, including, but not limited to, the Employee's
fraud, misappropriation, embezzlement, dishonesty, unlawful
harassment, or gross negligence; (5) lack of sufficient effort or
willful neglect in the performance of his duties; or (6)
inability to perform the essential functions of the job, even
with reasonable accommodation by the Companies, due to disability
of thirty days or more.
ii. WITHOUT CAUSE. The Parent Company may terminate the
Employee's employment with the Companies without cause, effective
upon thirty (30) days written notice to Employee. Employee shall
be entitled to (a) continuation of compensation as provided in
Paragraph 5 for a period of one year from the date of termination
and COBRA benefits. In such event, Employee, if requested by the
Companies, shall continue to render his services and shall be
paid his regular salary and receive his normal benefits up to the
effective date of termination. All stock options in employment
agreement shall be considered vested at the time of termination.
(b) TERMINATION BY EMPLOYEE. Employee may terminate his employment
under this Agreement at any time upon thirty (30) day's notice to
the Companies. In such event, Employee, if requested by the
Companies, shall continue to render his services and shall be
paid his regular salary and receive his normal benefits only up
to the effective date of termination. The Company's salary
obligations to the Employee shall cease as of the effective date
of termination, paragraph 6 shall continue in effect for the
original term of employment agreement.
(c) TERMINATION UPON DEATH. This Agreement shall terminate
automatically upon the death of Employee during the Term hereof,
and all salary payments shall immediately cease upon death. All
bonus eligibility shall be considered vested as per paragraph 6.
10. RESTRICTIVE COVENANTS.
(a) COVENANT NOT TO COMPETE. Employee acknowledges that as
President/CEO, Employee shall be engaged, without limitation, in,
and performing the other duties set forth in Paragraph 3 herein.
Employee also acknowledges that the Companies are currently
engaged in selling and reselling domestic and international
telecommunication service (the "Services"). Employee agrees that,
during the term of his employment and for a period of one year
after the expiration or termination of his employment with the
Companies, whether such termination is voluntary or involuntary,
with or without cause, he shall not, either directly or
indirectly, for himself or through, on behalf of, or in
conjunction with any other person or legal entity, perform
services for any other business engaged in providing the
Services.
(b) NON-INTERFERENCE WITH EMPLOYEES. During the term of Employee's
employment and for a period of one year after the expiration or
termination of his employment with the
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Employee Company
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Companies, whether such termination is voluntary or involuntary,
with or without cause, Employee will not, directly or indirectly,
on his own behalf or on behalf of or in conjunction with any
person or legal entity other than the Companies, recruit,
solicit, or induce or attempt to recruit, solicit or induce any
employee of the Companies to become employed by or to be engaged
in a business engaged in providing the Services.
(c) NON-SOLICITATION COVENANT. Employee agrees that during the term
of his employment and for a period of one year after the
expiration or termination of his employment by the Companies,
whether such termination is voluntary or involuntary, with or
without cause, Employee will not, directly or indirectly, on his
own behalf or on behalf of or in conjunction with any person or
entity other than the Companies, actively solicit the business or
patronage of any of the clients, customers or accounts of the
Companies served by Employee during the term of this Agreement.
(d) NON-DISCLOSURE COVENANTS. Employee acknowledges that as an
integral part of the Company's business, the Companies have
developed, and will develop, at a considerable investment of time
and expense, plans, procedures, methods of operation, methods of
production, financial data, lists of actual and potential
customers, suppliers, marketing strategies, plans for development
and expansion, customer and supplier data, and other confidential
and sensitive information, and Employee acknowledges that the
Companies have legitimate business interest in protecting the
confidentiality of such information. Employee acknowledges that
as President/CEO for the Companies, he will be entrusted with
such information. Employee, therefore, acknowledges a continuing
responsibility with respect to the protection of the information
and agrees:
i. "Trade Secrets" shall be defined as information, without
regard to form, belonging to the Companies or licensed by it
including, but not limited to, technical or nontechnical
data, formulae, patterns, compilations, programs, devices,
methods, techniques, drawings, processes, financial data,
financial plans, product plans, or lists of actual or
potential customers of suppliers which is not commonly known
by or available to the public and which information: (a)
derive economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by
proper means by, other persons or entities who can obtain
economic value from their disclosure or use; and (b) are the
subject of efforts that are reasonable under the
circumstances to maintain their secrecy.
ii. "Confidential Information" shall be defined as any
information belonging to the Companies or licensed by it
other than Trade Secrets with its material to the Companies
and not generally known by the public.
iii. Employee will treat as confidential and will not, without
the prior written approval of the Companies, use (other than
in the performance of his duties of employment with the
Company), publish, disclose copyright or authorize anyone
else to use, publish, disclose or copyright, either during
the term of Employee's employment or at any time subsequent
thereto, any information which constitutes
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Trade Secrets of the Companies whether or not the Trade
Secrets are in written or tangible form.
iv. Employee will treat as confidential and will not, without
the prior written approval of the Companies, use (other than
in the performance of his duties of employment with the
Companies), publish, disclose, copyright or authorize anyone
else to use, publish, disclose or copyright, any
Confidential Information either during the term of his
employment or for two (1) year after termination of
employment, whether voluntary or involuntary, with or
without cause, and whether or not the Confidential
Information is in written or other tangible form.
v. All records, notes, files, drawings, documents, plans and
like items, and all copies thereof, relating to or
containing or disclosing Confidential Information or Trade
Secrets of the Companies which are made or kept by Employee
or which are disclosed to or come into the possession of
Employee, shall be and remain the sole and exclusive
property of the Companies. Upon termination of employment,
Employee agrees to deliver to the Companies or their
designee, the originals and all copies of any of the
foregoing.
11. PROPRIETARY RIGHTS IN DEVELOPMENTS. In the course of rendering
his services to the Companies, Employee may conceive, create or develop or
invent ideas, concepts, methods of operation, processes, programs or other
matter or material, whether or not constituting an advance to, or an
improvement of, or pertaining to existing Companies proprietary matter (all of
which are hereinafter referred to as "Developments"). All Developments shall
constitute Confidential Information (and may constitute Trade Secrets) and
shall be subject to all of the restrictions imposed on Employee pursuant to
this Agreement. In addition, all Developments and all rights therein throughout
the world constitute works made for hire and in all circumstances shall be and
remain the sole and exclusive property of the Companies whether or not
protectible under any laws now known or hereafter applicable, including but not
limited to patent, copyright, trademark or trade secret laws.
(a) ASSIGNMENT BY EMPLOYEE OF ALL RIGHTS IN DEVELOPMENTS. Employee hereby
assigns to the Companies all rights throughout the world, however,
denominated (whether under patent, copyright, trademark, trade secret
or like or different laws), in all media now known or hereafter
recognized, in and to each such Development. This assignment is not
intended to derogate any rights the Companies have as an author of a
work made for hire. In order to fully effectuate these provisions,
Employee hereby represents and warrants, that, with respect to each
such Development: (i) to the extent of Employee's contribution, all
such matter is original and does not and will not infringe or violate
the rights of any other person or entity; and (ii) that neither
Employee nor anyone on his behalf have granted or will grant or
purport to grant to any other person or entity any rights, in whole or
in part, in and to such Developments.
(b) COOPERATION. Employee shall, during and after termination of
Employee's employment, cooperate with the Companies in the prosecution
or defense of any claims, litigation, or other proceedings involving
the Developments and provide such information and execute such
documents as the Companies may reasonably request to confirm,
implement or
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enforce its rights in such Developments. The Companies shall be
responsible for the expenses associated with the filing of any patent,
copyright, trademark or like applications.
12. REMEDIES FOR BREACH. In the event of Employee's actual or threatened
breach of the provisions of Paragraphs 10 or 11, the Companies, in addition to
all other rights, shall be entitled to an injunction-restraining Employee
therefrom. Nothing herein shall be construed as prohibiting the Companies from
pursuing any other available remedy for such breach or threatened breach,
including the recovery of damages from Employee. This provision shall remain in
full force and effect in the event Employee should claim that the Companies
violated any of the terms of this Agreement. In such event, Employee agrees to
pursue such claim against the Companies independently of his covenants set
forth in such Paragraphs.
13. GOVERNING LAW. This Agreement shall be construed under, governed by
and enforced in accordance with the laws of the State of Florida, not including
its conflicts of law principles.
14. RIGHT OF OFFSET. In the event Employee violates any of the terms or
conditions of this Agreement, the Companies shall have the right, in addition
to and not in lieu of all other rights at law or in equity, to offset the
amount of any damages caused by such breach or violation against any sums due
or to become due to Employee under the terms of this Agreement.
15. NOTICE. Any notice required or desired to be given under this
Agreement shall be deemed given in writing and hand-delivered or sent by
Certified mail to his address shown herein below in the case of Employee, or to
its principal office in the case of the Companies.
16. NO WAIVER BY COMPANIES. The waiver by the Companies of a breach of
any provision of this Agreement by Employee shall not operate or be construed
as a waiver of any subsequent breach by Employee. No waiver shall be valid
unless in writing and signed by an authorized officer of the Companies.
17. ASSIGNMENT. Employee acknowledges that the services to be rendered by
him are unique and personal. Accordingly, Employee may not assign any of his
rights or delegate any of his duties or obligations under this Agreement. The
rights and obligations of the Companies under this Agreement shall inure to the
benefit of and shall be binding upon the successors and assigns of the
Companies.
18. SEVERABILITY. Should any part of this Agreement, for any reason, be
declared invalid by an arbitrator or a court of competent jurisdiction, such
decision or determination shall not affect the validity of any remaining
portion, and such remaining portion shall remain in force and effect as if this
Agreement had been executed with the invalid portion eliminated; provided, that
in the event of declaration of invalidity, the provision declared invalid shall
not be invalidated in its entirety, but shall be observed and performed by the
parties to the extent such provision is valid and enforceable.
19. COMPLETE AGREEMENT. This Agreement shall constitute the entire
agreement between the parties hereto and shall supersede all previous
negotiations, commitments and writings with respect
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to Employee's employment. Any subsequent alteration or modification to this
Agreement must be made in writing and signed by both parties.
EMPLOYEE ACKNOWLEDGES THAT HE HAS HAD THE OPPORTUNITY TO CONSULT WITH AN
ATTORNEY OR ANY OTHER INDIVIDUAL FROM WHOM HE WISHED TO OBTAIN ADVICE
CONCERNING THIS AGREEMENT. EMPLOYMENT STATES THAT HE HAS CAREFULLY READ THE
WITHIN AND FOREGOING "EMPLOYMENT AGREEMENT" AND KNOWS AND UNDERSTANDS THE
CONTENTS THEREOF AND THAT HE IS EXECUTING THE SAME AS HIS OWN FREE ACT AND DEED.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
COMPANY: EMPLOYEE:
DEBITFONE INTERNATIONAL, INC. XXXXXXX XXXXXX
a Florida corporation
By: /s/ XXXXXXX XXXXXX /s/ XXXXXXX XXXXXX
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Xxxxxxx Xxxxxx
Its: President/CEO
SATELLITE CONTROL TECHNOLOGIES, Inc.,
a Nevada corporation
By: /s/ XXXXX XXXXXXXXXX /s/ XXXX XXXXXXXXX
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Xxxxx Xxxxxxxxxx Xxxx Xxxxxxxxx
Its: Majority Stockholders
By: /s/ XXXXXX XXXXXXXXX
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Xxxxxx Xxxxxxxxx, Director
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Employee Company
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