1
EXHIBIT 10.8
FIRST RESTATEMENT OF EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT") is entered into effective
as of December ___, 1996, between STAR VENDING, INC., a Nevada corporation (the
"COMPANY"), and XXXXX XXXXXXX (the "EMPLOYEE").
RECITAL:
A. The Company and Employee desire to hereby restate and supersede in
its entirety that certain Employment Agreement effective September 14, 1996
between Company and Employee. The purpose of this Agreement is to enter into
this Agreement to assure the Company of the continuing and exclusive services of
Employee and to set forth the rights and duties of the parties.
AGREEMENT:
NOW, THEREFORE, the parties, intending to be legally bound, agree as
follows:
1. EMPLOYMENT. During the term of this Agreement, the Company shall
employ Employee, and Employee accepts employment, as Executive Vice President -
Operations and Engineering. Employee's primary duties will be to manage the
Company's operations (other than sales and marketing) in accordance with the
policies established by the Company's Board of Directors. Employee will
faithfully perform his duties to the best of his ability in accordance with the
reasonable directions of the Company as given through the Board of Directors,
the Chief Executive Officer and the President. Employee will devote his full
business time, ability, attention and loyalty to the business of the Company
during the term of this Agreement, and will not, directly or indirectly, render
any services of a business, commercial or professional nature to any other
person, firm, corporation or organization for compensation without the prior
written consent of the Company.
2. TERM. The term of Employee's employment by the Company pursuant to
this Agreement shall be for a period of two years, commencing September 14, 1996
and ending September 13, 1998. The term of Employee's employment is subject to
earlier termination as provided in Section 7.
3. COMPENSATION; FRINGE BENEFITS
3.1 Base Salary. The Company shall pay Employee a monthly
salary during the term of this Agreement. This salary shall be $12,500 per
month. Employee's salary shall not be
-1-
2
reduced at any time during the term of this Agreement, but the foregoing shall
not limit the Company's rights under Section 7.
3.2 Stock Options. Employee shall be awarded incentive stock
options to purchase a total of 100,000 shares of the Company's common stock
pursuant to the Company's 1996 Supplemental Stock Option Plan.
3.3 Fringe Benefits. During the employment term, Employee
shall be entitled to receive, at the Company's sole expense, the following
fringe benefits:
A. Group health insurance, paid vacation leave, life
insurance and other insurance programs as set forth in the Company's employee
manual applicable to employees generally to the same extent, and on the same
terms, as other employees of the Company; and
B. Other benefits accorded to executives of the
Company as determined from time to time by the Board of Directors.
3.4 Taxes. Compensation paid to Employee under Sections 3.1
through 3.3, inclusive, shall be subject to withholding for federal and state
income tax purposes. All payments received by Employee shall be reported on his
federal and state tax returns as compensation for employment in a manner
consistent with this Agreement.
3.5 Expenses. During the employment term, the Company shall
reimburse Employee for reasonable out-of-pocket expenses incurred in connection
with Company business. All reimbursements required by this Section 3.5 shall be
subject to such reasonable policies and record keeping as the Company may from
time to time establish for its employees.
4. CONFIDENTIAL INFORMATION. Employee shall, during the term of this
Agreement and thereafter, hold in confidence and not disclose to any person or
entity without the express prior authorization of the Company, any and all trade
secrets of the Company (including, without limitation, all customer lists and
lists of customer sources), and any and all other secret or confidential
information relating to the services, customers, sales or business affairs of
the Company or its affiliates. Employee agrees that he will not make use of any
of the above at any time after termination of his employment. Upon termination
of his employment, Employee shall deliver to the Company all documents, records,
notebooks, work papers and all similar repositories containing any information
concerning the Company, whether prepared by Employee, the Company or anyone
else. This Agreement will further incorporate any and all provisions with
respect to confidentiality, trade secrets, secret processes and data to which
Company may be required to cause its employees to
-2-
3
agree under the terms and provisions of any contract entered into by Company
with any customer or client thereof, or under the terms of any subcontract to
which Company may be a party, whether the same be in any contract to which the
Company is presently a party or may, during the course of this Agreement, become
a party, or under the provisions of any other contract with a customer of
Company.
5. NO SOLICITATION OF EMPLOYEES. Employee agrees that during the term
of this Agreement, and for a period of twelve (12) months thereafter, he will
not, directly or indirectly, for himself, or as agent, or on behalf of or in
conjunction with any other person, firm, partnership, corporation or other
entity, induce or entice any employee of the Company or its affiliates to leave
such employment or cause anyone else to do so.
6. ASSIGNMENT. Employee shall not have any right to delegate or
transfer any duty or obligation to be performed by him to any third party, nor
to assign or transfer the right, if any, to receive payments under this
Agreement.
7. TERMINATION.
7.1 Methods of Termination. This Agreement and the
employment of Employee may be terminated at any time:
A. By mutual agreement of the parties.
B. By the Company if Employee dies or becomes
physically or mentally disabled (the term "disabled" shall mean any mental or
physical illness or disability that renders the Employee unable to perform the
essential functions of his position, after reasonable accommodation of such
disability by the Company).
C. By the Company, for cause, if Employee (a) has
committed any material act of dishonesty, fraud or misrepresentation or any act
of moral turpitude; (b) is in default in the performance of Employee's material
obligations, services or duties under this Agreement; or (c) has failed to
execute specific instructions from the Company's Board of Directors or executive
officers, which failure is not corrected by Employee after reasonable notice
from the Company.
D. By the Company, without cause, at any time during
the term of this Agreement.
E. By the Employee if the Company is in default of
its material obligations or duties under this Agreement.
F. By the Employee, without cause, at any time during
the term of this Agreement.
-3-
4
7.2 Consequences of Termination. Employee shall be entitled to
the following compensation in the event of a termination:
A. In the event of any termination under Sections
7.1A, 7.1B, 7.1C, 7.1D or 7.1F, Employee (or, in the event of Employee's death,
his estate) shall be entitled to receive compensation accrued and payable to him
as of the date of termination or death, and all other amounts payable under this
Agreement shall thereupon cease.
B. In the event of any termination under Section
7.1E, or Section 7.1D if such termination occurs within four (4) months after
the consummation of a Sale Transaction (as defined below) relating to the
Company, then Employee shall continue to receive the compensation provided in
this Agreement until the expiration of this Agreement. A "Sale Transaction"
shall mean the acquisition by a single entity or group of affiliated entities
(other than existing shareholders of the Company or their affiliates) of more
than seventy-five percent (75%) of each class of voting securities of the
Company pursuant to a tender offer or exchange offer approved in advance by the
Board of Directors. Any amounts earned by him (other than through his personal
investment activities) prior to such expiration by virtue of other employment
shall be deducted from amounts to which he is entitled under this Agreement.
7.3 IRC Violations. Any provision in this Agreement to the
contrary notwithstanding, in no event will Employee receive a payment which
would trigger the excise taxes and disallowance of deductions contemplated by
Sections 280G and 4999 of the Internal Revenue Code of 1986, as amended (the
"Code"). In the event that any amount calculated would result in such a payment,
such amount shall be reduced to the largest amount that would not result in such
a payment. This reduction shall apply to any and all compensation, including
compensation pursuant to stock option grants governed by separate agreement
between the Company and Employee. If, at the time of any such payment, no stock
of the Company is readily tradable on an established securities market or
otherwise, then the Company agrees to use its best efforts to cause such payment
to meet the exemption set forth in Sections 280G(b)(5)(A)(ii) and (B) of the
Code, so that no reduction will be required under this Agreement.
8. REPRESENTATIONS AND WARRANTIES OF EMPLOYEE. Employee represents and
warrants that there are no agreements or arrangements, whether written or oral,
that would be breached by Employee upon execution of this Agreement or that
would impair or prevent Employee from rendering exclusive services to the
Company during the term of this Agreement, and that Employee has not made and
will not make any commitment or do any act in conflict with this Agreement.
-4-
5
9. MISCELLANEOUS. This Agreement, and the legal relations between the
parties, shall be governed by and construed in accordance with the laws of the
State of California. This Agreement supersedes all prior agreements between the
parties concerning the subject matter, and constitutes the entire agreement
between the parties with respect to the subject matter. This Agreement may be
modified only with a written instrument duly executed by each of the parties. No
waiver by any party of any breach of this Agreement shall be deemed to be a
waiver of any proceeding or succeeding breach. The headings and titles to the
Sections of this Agreement are inserted for convenience only and shall not be
deemed a part of or effect the construction or interpretation or any provision
of this Agreement. This Agreement may be executed in counterparts, each of which
shall be deemed to be an original, and all such counterparts together shall
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date above written.
STAR VENDING, INC.
By________________________
Xxxx Xxxxx, President
__________________________
Xxxxx Xxxxxxx
-5-
