EXHIBIT 10.3
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into, effective as
of January 25, 2002, by and between Xxxxxxxx Xxxxxx, an individual residing in
the State of Florida ("Xxx. Xxxxxx"), and Pop Starz, Inc., a Florida
corporation, ("Pop Starz" and the "Exchange Act," respectively, Pop Starz and
all of its subsidiaries, whether current or subsequently formed or acquired,
being collectively hereinafter referred to as the "Consolidated Corporation,"
and Pop Starz and Xxx. Xxxxxx being sometimes hereinafter collectively to as the
"Parties" or generically as a "Party".
Preamble:
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WHEREAS, Pop Starz is in the business of operating children's and young
adults' entertainment talent development programs, including dance, acting,
voice, and exercise (the "Business"); and
WHEREAS, Pop Starz wishes to retain Xxx. Xxxxxx, and Xxx. Xxxxxx wishes to
be retained in such capacity and perform certain services for Pop Starz, to
promote the interests of the Business;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements hereby exchanged, as well as of the sum of Ten ($10.00) Dollars and
other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the Parties, intending to be legally bound, hereby agree as
follows:
Witnesseth:
Article One
Term, Renewals, Earlier Termination
1.1 Term.
Subject to the provisions set forth herein, the term of Xxx. Xxxxxx'x
employment hereunder shall be deemed to commence as of January 25, 2002 and
continue until January 24, 2007, unless extended or earlier terminated by Pop
Starz as hereinafter set forth.
1.2 Renewals.
This Agreement shall be renewed automatically, after expiration of the
original term, on a continuing annual basis, unless the Party wishing not to
renew this Agreement provides the other Party with written notice of its
election not to renew ("Termination Election Notice") on or before the 60th day
prior to termination of the then current term.
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1.3 Earlier Termination.
Pop Starz shall have the right to terminate this Agreement prior to the
expiration of its Term or of any renewals thereof, subject to the provisions of
Section 1.4, for the following reasons:
(a) For Cause:
(1) Pop Starz may terminate Xxx. Xxxxxx'x employment under this Agreement
at any time for cause.
(2) Such termination shall be evidenced by written notice thereof to Xxx.
Xxxxxx, which notice shall specify the cause for termination.
(3) For purposes hereof, the term "cause" shall mean:
(A) The inability of Xxx. Xxxxxx, through sickness or other
incapacity, to discharge her duties under this Agreement for 30
or more consecutive days or for a total of 60 or more days in a
period of twelve consecutive months;
(B) The refusal of Xxx. Xxxxxx to follow the directions of Pop
Starz's board of directors, unless Xxx. Xxxxxx believes in good
faith that such directions are contrary to law;
(C) Dishonesty; theft; or conviction of a crime involving moral
turpitude;
(D) Material default in the performance of her obligations, services
or duties required under this Agreement or materially breach of
any provision of this Agreement, which default or breach has
continued for five days after written notice of such default or
breach.
(b) Discontinuance of Business:
In the event that Pop Starz discontinues operating its business, this
Agreement shall terminate as of the last day of the month on which it
ceases operation with the same force and effect as if such last day of the
month were originally set as the termination date hereof; provided,
however, that a reorganization of Pop Starz shall not be deemed a
termination of its business.
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(c) Death:
This Agreement shall terminate immediately on Xxx. Xxxxxx'x death; however,
all accrued compensation at such time shall be promptly paid to Xxx.
Xxxxxx'x estate.
1.4 Final Settlement.
Upon termination of this Agreement and payment to Xxx. Xxxxxx of all
amounts due her hereunder, Xxx. Xxxxxx or her representative shall execute and
deliver to the terminating entity on a form prepared by the terminating entity,
a receipt for such sums and a release of all claims, except such claims as may
have been submitted pursuant to the terms of this Agreement and which remain
unpaid, and, shall forthwith tender to Pop Starz all records, manuals and
written procedures, as may be desired by it for the continued conduct of its
business.
Article Two
Scope of Employment
2.1 Retention.
Pop Starz hereby hires Xxx. Xxxxxx and Xxx. Xxxxxx hereby accepts such
employment, in accordance with the terms, provisions and conditions of this
Agreement.
2.2 General Description of Duties.
(a) Xxx. Xxxxxx shall be employed as the president and chief executive officer
of Pop Starz and shall perform the duties associated therewith by Pop
Starz's bylaws.
(b) Without limiting the generality of the foregoing, Xxx. Xxxxxx shall:
(1) Serve as the principal point of contact between Pop Starz and:
(A) The media (print, electronic, voice and picture);
(B) Pop Starz's security holder;
(2) Be responsible for supervision of all of Pop Starz's other officers;
(3) Be responsible for Pop Starz's compliance with all applicable laws,
including federal, state and local laws and tax laws;
(4) Be responsible for supervision of Pop Starz's subsidiaries; and
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(5) Perform such other duties as are assigned to her by Pop Starz's board
of directors, subject to compliance with all applicable laws and
fiduciary obligations.
(c) Xxx. Xxxxxx covenants and agrees to perform her duties in good faith and,
subject to the exceptions specified in Section 2.4, to devote substantially
all of her business time, energies and abilities to the proper and
efficient management and execution of such duties.
2.3 Status.
(a) Xxx. Xxxxxx shall serve as an employee of Pop Starz and shall have
authority to act as an agent thereof, or to bind Pop Starz or its
subsidiaries as a principal or agent thereof.
(b) Xxx. Xxxxxx hereby represents and warrants to Pop Starz that she is subject
to no legal, self regulatory organization (e.g., National Association of
Securities Dealers, Inc.'s bylaws) or regulatory impediments to the
provision of the services called for by this Agreement, or to receipt of
the compensation called for under this Agreement or any supplements
thereto; and, Xxx. Xxxxxx hereby irrevocably covenants and agrees to
immediately bring to the attention of Pop Starz any facts required to make
the foregoing representation and warranty continuously accurate throughout
the term of this Agreement, or any supplements or extensions thereof.
2.4 Exclusivity.
Xxx. Xxxxxx shall, unless specifically otherwise authorized by Pop Starz's
board of directors, on a case by case basis, devote her business time in a way
that the affairs of Pop Starz are satisfied; provided, however, that Pop Starz
hereby recognizes that Xxx. Xxxxxx is involved with other business ventures and
hereby consents to her continuation in such roles, provided that her role as Pop
Starz 's president and chief executive officer shall take priority in allocation
of time and resources to any activities pertaining to such roles, and that she
will resolve any actual conflicts of interest resulting from such roles in favor
of Pop Starz whenever possible and practical.
2.5 Limitations on Services
(a) In any circumstances where Xxx. Xxxxxx is describing the securities of Pop
Starz to a third party, Xxx. Xxxxxx shall disclose to such person any
compensation received from Pop Starz to the extent required under any
applicable laws, including, without limitation, Section 17(b) of the
Securities Act of 1933, as amended.
(b) In rendering her services, Xxx. Xxxxxx shall not disclose to any third
party any confidential non-public information furnished by Pop Starz or
otherwise obtained by it with respect to Pop Starz, except on a need to
know basis, and in such case, subject to appropriate assurances that such
information shall not be used, directly or indirectly, in any manner that
would violate state or federal prohibitions on xxxxxxx xxxxxxx of Pop
Starz's securities.
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(c) Xxx. Xxxxxx shall not take any action which would in any way adversely
affect the reputation, standing or prospects of Pop Starz or which would
cause Pop Starz to be in violation of applicable laws.
Article Three
Compensation
3.1 Compensation.
As consideration for Xxx. Xxxxxx'x services to Explorations she shall be
entitled to $75,000 per year, and all payments will be accrued until funds are
available, provided that:
(a) She has not been discharged by Pop Starz for cause;
(b) She fully complies with the provisions of this Agreement, including,
without limitation, the confidentiality and non-competition sections
hereof.
3.2 Benefits
Xxx. Xxxxxx shall be entitled to any benefits generally made available to
all other employees (rather than to a specified employee or group of employees).
3.3 Indemnification.
Pop Starz will defend, indemnify and hold Xxx. Xxxxxx harmless from all
liabilities, suits, judgments, fines, penalties or disabilities, including
expenses associated directly, therewith (e.g. legal fees, court costs,
investigative costs, witness fees, etc.) resulting from any reasonable actions
taken by her in good faith on behalf of the Consolidated Corporation, its
affiliates or for other persons or entities at the request of the board of
directors of Pop Starz, to the fullest extent legally permitted, and in
conjunction therewith, shall assure that all required expenditures are made in a
manner making it unnecessary for Xxx. Xxxxxx to incur any out of pocket
expenses; provided, however, that Xxx. Xxxxxx permits Pop Starz to select and
supervise all personnel involved in such defense and that Xxx. Xxxxxx waives any
conflicts of interest that such personnel may have as a result of also
representing Pop Starz, their stockholders or other personnel and agrees to hold
them harmless from any matters involving such representation, except such as
involve fraud or bad faith.
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Article Four
Special Covenants
4.1 Confidentiality.
(a) Xxx. Xxxxxx acknowledges that, in and as a result of her employment
hereunder, she will be developing for Pop Starz, making use of, acquiring
and/or adding to, confidential information of special and unique nature and
value relating to such matters as Pop Starz's trade secrets, systems,
procedures, manuals, confidential reports, personnel resources, strategic
and tactical plans, advisors, clients, investors and funders; consequently,
as material inducement to the entry into this Agreement by Pop Starz, Xxx.
Xxxxxx hereby covenants and agrees that she shall not, at anytime during or
following the terms of her employment hereunder, directly or indirectly,
personally use, divulge or disclose, for any purpose whatsoever, any of
such confidential information which has been obtained by or disclosed to
her as a result of her employment by Pop Starz, or Pop Starz's affiliates.
(b) In the event of a breach or threatened breach by Xxx. Xxxxxx of any of the
provisions of this Section 4.1, Pop Starz, in addition to and not in
limitation of any other rights, remedies or damages available to Pop Starz,
whether at law or in equity, shall be entitled to a permanent injunction in
order to prevent or to restrain any such breach by Xxx. Xxxxxx, or by Xxx.
Xxxxxx'x partners, agents, representatives, servants, employers, employees,
affiliates and/or any and all persons directly or indirectly acting for or
with her. 4.2 Special Remedies.
In view of the irreparable harm and damage which would undoubtedly occur to
Pop Starz as a result of a breach by Xxx. Xxxxxx of the covenants or agreements
contained in this Article Four, and in view of the lack of an adequate remedy at
law to protect Pop Starz's interests, Xxx. Xxxxxx hereby covenants and agrees
that Pop Starz shall have the following additional rights and remedies in the
event of a breach hereof:
(a) Xxx. Xxxxxx hereby consents to the issuance of a permanent injunction
enjoining her from any violations of the covenants set forth in Section 4.1
hereof; and
(b) Because it is impossible to ascertain or estimate the entire or exact cost,
damage or injury which Pop Starz may sustain prior to the effective
enforcement of such injunction, Xxx. Xxxxxx hereby covenants and agrees to
pay over to Pop Starz, in the event she violates the covenants and
agreements contained in Section 4.2 hereof, the greater of:
(i) Any payment or compensation of any kind received by her
because of such violation before the issuance of such
injunction, or
(ii) The sum of One Thousand ($1,000.00) Dollars per violation,
which sum shall be liquidated damages, and not a penalty,
for the injuries suffered by Pop Starz as a result of such
violation, the Parties hereto agreeing that such liquidated
damages are not intended as the exclusive remedy
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available to Pop Starz for any breach of the covenants and
agreements contained in this Article Four, prior to the
issuance of such injunction, the Parties recognizing that
the only adequate remedy to protect Pop Starz from the
injury caused by such breaches would be injunctive relief.
4.3 Cumulative Remedies.
Xxx. Xxxxxx hereby irrevocably agrees that the remedies described in
Section 4.3 hereof shall be in addition to, and not in limitation of, any of the
rights or remedies to which Pop Starz is or may be entitled to, whether at law
or in equity, under or pursuant to this Agreement.
4.4 Acknowledgment of Reasonableness.
Xxx. Xxxxxx hereby represents, warrants and acknowledges that she has
carefully read and considered the provisions of this Article Four and, having
done so, agrees that the restrictions set forth herein are fair and reasonable
and are reasonably required for the protection of the interests of Pop Starz,
its officers, directors and other employees; consequently, in the event that any
of the above-described restrictions shall be held unenforceable by any court of
competent jurisdiction, Xxx. Xxxxxx hereby covenants, agrees and directs such
court to substitute a reasonable judicially enforceable limitation in place of
any limitation deemed unenforceable and, Xxx. Xxxxxx hereby covenants and agrees
that if so modified, the covenants contained in this Article Four shall be as
fully enforceable as if they had been set forth herein directly by the Parties.
In determining the nature of this limitation, Xxx. Xxxxxx hereby acknowledges,
covenants and agrees that it is the intent of the Parties that a court
adjudicating a dispute arising hereunder recognize that the Parties desire that
this covenant not to compete be imposed and maintained to the greatest extent
possible.
4.5 Covenant not to Disparage
Xxx. Xxxxxx hereby irrevocably covenants and agrees that during the term of
this Agreement and after its termination, she will refrain from making any
remarks that could be construed by anyone, under any circumstances, as
disparaging, directly or indirectly, specifically, through innuendo or by
inference, whether or not true, about the Consolidated Company, its constituent
members, or their officers, directors, stockholders, employees, agent or
affiliates, whether related to the business of the Consolidated Company, to
other business or financial matters or to personal matters.
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Article Five
Miscellaneous
5.1 Notices.
(a) All notices, demands or other communications hereunder shall be in writing,
and unless otherwise provided, shall be deemed to have been duly given on
the first business day after mailing by registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:
To Xxx. Xxxxxx:
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000;
Xxxx Xxxxx, Xxxxxxx 00000
Telephone (000) 000-0000; Facsimile (000) 000-0000;
e-mail xxxxxxxx@xxx.xxx
To Pop Starz:
Pop Starz, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000-X;
Xxxx Xxxxx, Xxxxxxx 00000
Telephone (000) 000-0000, Fax (000) 000-0000;
Attention: Chairman of the Board
or such other address or to such other person as any Party shall designate
to the other for such purpose in the manner hereinafter set forth.
(b) (1) The Parties acknowledge that the Yankee Companies, LLC.
("Yankees") serves as a strategic consultant to Pop Starz and has
acted as scrivener for the Parties in this transaction but that
Yankees is neither a law firm nor an agency subject to any
professional regulation or oversight.
(2) Because of the inherent conflict of interests involved, Yankees has
advised all of the Parties to retain independent legal and accounting
counsel to review this Agreement and its exhibits and incorporated
materials on their behalf.
(c) The decision by any Party not to use the services of legal counsel in
conjunction with this transaction shall be solely at their own risk, each
Party acknowledging that applicable rules of the Florida Bar prevent Pop
Starz's general counsel, who has reviewed, approved and caused
modifications on behalf of Pop Starz, from representing anyone other than
Pop Starz in this transaction.
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5.2 Amendment.
(a) No modification, waiver, amendment, discharge or change of this Agreement
shall be valid unless the same is in writing and signed by the Party
against which the enforcement of said modification, waiver, amendment,
discharge or change is sought.
(b) This Agreement may not be modified without the consent of a majority in
interest of Pop Starz's stockholders.
5.3 Merger.
(a) This instrument contains all of the understandings and agreements of the
Parties with respect to the subject matter discussed herein.
(b) All prior agreements whether written or oral, are merged herein and shall
be of no force or effect.
5.4 Survival.
The several representations, warranties and covenants of the Parties
contained herein shall survive the execution hereof and shall be effective
regardless of any investigation that may have been made or may be made by or on
behalf of any Party.
5.5 Severability.
If any provision or any portion of any provision of this Agreement, or the
application of such provision or any portion thereof to any person or
circumstance shall be held invalid or unenforceable, the remaining portions of
such provision and the remaining provisions of this Agreement or the application
of such provision or portion of such provision as is held invalid or
unenforceable to persons or circumstances other than those to which it is held
invalid or unenforceable, shall not be effected thereby.
5.6 Governing Law and Venue.
This Agreement shall be construed in accordance with the laws of the State
of Florida but any proceeding arising between the Parties in any matter
pertaining or related to this Agreement shall, to the extent permitted by law,
be held in Broward County, Florida.
5.7 Dispute Resolution.
(a) In any action between the Parties to enforce any of the terms of this
Agreement or any other matter arising from this Agreement, the prevailing
Party shall be entitled to recover its costs and expenses, including
reasonable attorneys' fees up to and including all negotiations, trials and
appeals, whether or not litigation is initiated.
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(b) In the event of any dispute arising under this Agreement, or the
negotiation thereof or inducements to enter into the Agreement, the dispute
shall, at the request of any Party, be exclusively resolved through the
following procedures:
(1) (A) First, the issue shall be submitted to mediation before a
mediation service in Broward County, Florida, to be selected by
lot from six alternatives to be provided, three by Pop Starz and
three by Xxx. Xxxxxx.
(B) The mediation efforts shall be concluded within ten business days
after their in itiation unless the Parties unanimously agree to
an extended mediation period.
(2) In the event that mediation does not lead to a resolution of the
dispute then at the request of any Party, the Parties shall submit the
dispute to binding arbitration before an arbitration service located
in Broward County, Florida to be selected by lot, from six
alternatives to be provided, three by Pop Starz and three by Xxx.
Xxxxxx.
(3) (A) Expenses of mediation shall be borne by Pop Starz, if successful.
(B) Expenses of mediation, if unsuccessful and of arbitration shall
be borne by the Party or Parties against whom the arbitration
decision is rendered.
(C) If the terms of the arbitral award do not establish a prevailing
Party, then the expenses of unsuccessful mediation and
arbitration shall be borne equally by the Parties.
5.8 Benefit of Agreement.
(a) This Agreement may not be assigned by Xxx. Xxxxxx without the prior written
consent of Pop Starz.
(b) Subject to the restrictions on transferability and assignment contained
herein, the terms and provisions of this Agreement shall be binding upon
and inure to the benefit of the Parties, their successors, assigns,
personal representative, estate, heirs and legatees.
5.9 Captions.
The captions in this Agreement are for convenience and reference only and
in no way define, describe, extend or limit the scope of this Agreement or the
intent of any provisions hereof.
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5.10 Number and Gender.
All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural, as the identity of the Party or
Parties, or their personal representatives, successors and assigns may require.
5.11 Further Assurances.
The Parties hereby agree to do, execute, acknowledge and deliver or cause
to be done, executed or acknowledged or delivered and to perform all such acts
and deliver all such deeds, assignments, transfers, conveyances, powers of
attorney, assurances, recipes, records and other documents, as may, from time to
time, be required herein to effect the intent and purposes of this Agreement.
5.12 Status.
Nothing in this Agreement shall be construed or shall constitute a
partnership, joint venture, agency, or lessor-lessee relationship; but, rather,
the relationship established hereby is that of independent contractor to Pop
Starz.
5.13 Counterparts.
(a) This Agreement may be executed in any number of counterparts.
(b) Execution by exchange of facsimile transmission shall be deemed legally
sufficient to bind the signatory; however, the Parties shall, for aesthetic
purposes, prepare a fully executed original version of this Agreement,
which shall be the document filed with the Securities and Exchange
Commission.
5.14 License.
(a) This Agreement is the property of Yankees and the use hereof by the Parties
is authorized hereby solely for purposes of this transaction.
(b) The use of this form of agreement or of any derivation thereof without
Yankees' prior written permission is prohibited.
(c) This Agreement shall not be more strictly interpreted against any Party as
a result of its authorship.
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In Witness Whereof, the Parties have executed this Agreement, effective as
of the date set forth above.
Signed, Sealed & Delivered
In Our Presence
/s/ Xxxx Xxxxxxx /s/ Xxx. Xxxxxx
/s/ Xxxxxxx X. Xxxxxxx /s/
/s/ Xxxxxxxx Xxxxxx /s/
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Dated: January 25, 2002 Xxxxxxxx Xxxxxx
Pop Starz, Inc.,
/s/ Xxxxxxx X. Xxxxxxx /s/ a Florida corporation
/s/ Xxxx Xxxxxxx /s/
By: /s/ Xxxxxxxx Xxxxxx /s/
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Xxxxxxxx Xxxxxx
President & Director
(CORPORATE SEAL)
Dated: January 25, 2002
Pop Starz, Inc. Employment Agreement - 12
