EXHIBIT 10.3
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT is entered into this 1st day of December 2000,
by and between PayStar Communications Corporation, a corporation organized and
existing pursuant to the laws of the state of Nevada with principal offices at
0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 00, Xxxx, XX 00000 (hereinafter referred to as
the "Client") and Xxxx XxXxx, an individual with offices at 0000 Xxxxx Xxx
Xxxxx, Xxxxx, XX 00000, (hereinafter referred to as the "Consultant").
RECITALS:
WHEREAS, Consultant has been an employee of the Client since
approximately October 1999, pursuant to the terms of an employment agreement
dated October 1, 1999 (the "Employment Agreement");
WHEREAS, the parties wish to mutually terminate the Employment Agreement
and to enter into this consulting arrangement pursuant to the terms of this
Agreement;
WHEREAS, Client and Consultant wish, by means of this Agreement, to set
forth the terms and conditions pursuant to which the Consultant will render
consulting services to the Client.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, Client and Consultant agree
as follows:
1. Appointment of Consultant. Client hereby retains the services of
Consultant to perform the duties set forth herein. Consultant accepts such
appointment and agrees to exert its diligent best efforts and to devote
essentially his full-time efforts to providing the consulting services to the
Client.
2. Term. Term of this agreement shall be for six months commencing
December 1, 2000.
3. Cancellation of Employment Agreement. The Employment Agreement is
hereby canceled and terminated effective the close of business on November 30,
2000. The parties waive any written notice requirement for termination by
mutual written consent as set forth in section 14(b) of the Employment
Agreement. Consultant hereby forfeits and waives any right to any bonuses,
any unused vacation time, or any other benefits accrued as of the date of
termination of the Employment Agreement. The Client acknowledges its
obligation to pay for the Client's expenses incurred on consultant's American
Express credit card in the amount of $226,889.43.
4. Duties of Consultant. The Consultant hereby agrees to perform the
following services on behalf of Client:
a. Assist Client in sales of pay telephones and cashless ATM
machines.
b. Work with multimedia services in generating advertising
revenues for the Client.
c. Consult generally with Client.
5. Duties of Client. In connection with the activities to be
undertaken in accordance with this Agreement, Client will provide to
Consultant access to all appropriate business and other records reasonably
necessary to Consultant in carrying out his consulting activities hereunder.
6. Compensation. As compensation for his services rendered pursuant
to the Client, the Client shall pay to Consultant a monthly fee of $15,000,
payable semimonthly. The parties shall negotiate any additional fees for new
business generated by Consultant for Client.
7. Confidentiality of Information. Except as required in the
ordinary course of Client's business, Consultant shall hold in confidence and
not disclose to any person or entity without the express prior written
authorization of Client, either during the term of this Agreement or any time
thereafter, the names or addresses of any of Client's customers; Client's past
or prospective dealings with its customers; the parties, dates, or terms if
any of Client'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 Client or any companies affiliated
with Client. Consultant 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 Client and he agrees to
comply with all known policies and procedures of Client for the protection of
said confidential information. The term "confidential information" as used in
this Agreement means (i) proprietary information of Client including, but not
limited to, formulas, procedure, processes, materials, client lists and vendor
lists; (ii) information marked or designated by Client as confidential; (iii)
information whether or not in written form which is known by the Consultant to
be treated by Client as confidential; and (iv) information provided to
Consultant by third parties which Client is obligated to keep confidential.
Consultant agrees as follows both during and after the term of this Agreement:
a. That he will not copy, transmit, reproduce, summarize, quote
or make any commercial or other use whatsoever of Client's confidential
information except as may be necessary in the performance of his duties for
Client.
b. Consultant agrees to exercise the highest degree of care in
safeguarding Client's confidential information against loss, theft or other
inadvertent disclosure and agrees generally to take all steps necessary to
ensure the maintenance of confidentiality.
c. Upon termination of this Agreement, or as otherwise requested
by Client, will deliver promptly to Client all of Client's confidential
information in whatever form that may be in his possession or under his
control.
d. Consultant agrees not to disclose Client's confidential
information directly or indirectly under any circumstances or by any means to
any third person without the express written consent of Client.
8. Right to Client Materials. Consultant agrees that all documents
are intangible media relating to Client'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
("Client Materials"). Client Materials shall remain the property of Client.
Client Materials constitute trade secrets of Client and shall not be disclosed
to any other party except as expressly authorized by Client. Upon termination
of the Agreement, for any reason, all Client Materials shall be returned
immediately to Client, and Consultant shall not make or retain any copies
thereof.
9. Injunctive Relief. Both Client and the Consultant recognize that
no adequate remedy at law exists in which to enforce the terms and conditions
of this Agreement. Therefore, in the event the Consultant breaches the
confidential or covenant not-to-compete provisions of this Agreement, then
Client shall be entitled to injunctive relief prohibiting the continued
breaches of the Agreement by the Consultant.
10. Independent Contractor. The parties intend that Consultant be an
independent contractor and not an agent or employee of the Client. Except for
the compensation to be provided herein, Consultant shall not be entitled to
any of the benefits provided by the Client to its employees. Consultant shall
be responsible for and shall pay any and all state, federal, or local taxes on
compensation paid to Consultant hereunder.
11. Termination.
a. The services of Consultant may be terminated at any time by:
(i) Action of the Board of Directors of Client if
Consultant is in substantial 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 has committed any act of
dishonesty, fraud, misrepresentation, or other act of moral turpitude that
would prevent the effective performance of Consultant's duties; or
(ii) A determination by the Board of Directors that the
Consultant has become so physically or mentally disabled as to be incapable of
satisfactorily performing his duties under this Agreement.
b. All obligations of Client hereunder shall terminate upon the
death of Consultant.
12. Assignment Rights.
a. This Agreement is a personal contract, and the rights and
interests of the Consultant hereunder may not be sold, transferred, assigned,
pledged or hypothecated except as otherwise expressly permitted by the
provisions of this Agreement. The Consultant shall not under any
circumstances have any option or right to require payment hereunder otherwise
than in accordance with the terms hereof. Except as otherwise expressly
provided herein, all rights and benefits of the Consultant shall be for the
sole personal benefit of the Consultant and no other person shall acquire any
right, title or interest hereunder by reason of any sale, assignment,
transfer, claim or judgment or bankruptcy proceedings against the Consultant;
provided, however, that in the event of the Consultant's death, the
Consultant's estate, legal representative or beneficiaries (as the case may
be) shall have the right to receive all of the benefit that accrued to the
Consultant pursuant to, and in accordance with, the terms of this Agreement.
b. The Client shall have the right to assign this Agreement to
any successor of substantially all of its business or assets, and any such
successor shall be bound by all of the provisions hereof.
13. Notices. Any notice to be given to Client under the terms of
this Agreement shall be addressed to the Chairman of Client's Board of
Directors, and any notice to be given to Consultant shall be addressed to him
at his home address last shown on the records of Client, 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. Entire Agreement. This Agreement supersedes all prior agreements
and understandings 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 executed this agreement the day and
year first above written.
CLIENT: PayStar Communications Corporation
By /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, Chairman
CONSULTANT: /s/ Xxxx XxXxx
Xxxx XxXxx
