Exhibit 10.3
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EMPLOYMENT AGREEMENT
This Agreement, made and entered into this ____ day of October, 2002,
by and between STARQUEST WIRELESS, INC. (hereinafter referred to as "Employer"),
and XXXXX XXXXXXX (hereinafter referred to as "Employee").
WITNESS:
WHEREAS, Employee's diligent efforts on behalf of Employer are vital to
the continued success of Employer; and
WHEREAS, Employer desires to employ Employee and Employee desires to be
employed by Employer pursuant to the terms of this Agreement.
NOW THEREFORE, in consideration of the mutual covenants contained
herein and other valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
7. Employment. Employer hereby employs Employee and Employee hereby accepts
employment upon the terms and conditions hereinafter set forth. This Agreement
supersedes any prior employment contracts.
8. Term. This Agreement shall commence October 9, 2002, and shall remain in
effect until it is terminated, pursuant to Section 6.
9. Salary and Benefits. For all services rendered by Employee under this
Agreement, Employer shall pay Employee an annual salary and benefits described
on the attached Exhibit No. "1". Employer shall pay Employee in equal
installments not less than monthly.
10. Duties. Employee shall be employed to perform the following duties: Act as
CEO of Employer; follow directions and instructions provided by Employer's Board
of Directors.
11. Best Efforts and Exclusive Employment. Employee shall devote all of
Employee's professional and occupational time, attention, knowledge and skills
solely to the business and the interests of Employer. Employee agrees that he
will, at all times, faithfully, industriously and to the best of his ability,
experience and talents, perform all of the duties that may be required of him
pursuant to the terms of this Agreement.
12. Termination. For cause, Employer may terminate this Agreement at any time,
upon written notice provided to Employee. For purposes of this Agreement, the
term "cause" shall be defined as an occurrence of any of the following events:
Employee's negligence in the performance of his duties or failure or willful
refusal to perform his duties;
the determination by Employer in the exercise of its reasonable judgment that
Employee has committed an act that (i) negatively affects Employer's business or
reputation, or (ii) indicates alcohol or drug abuse by Employee that adversely
affects his performance hereunder;
the determination by Employer in the exercise of its reasonable judgment that
Employee has committed an act or acts constituting a felony or other act
involving dishonesty, disloyalty or fraud against Employer;
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the determination by Employer in the exercise of its reasonable judgment that
Employee failed or refused to comply with the terms of this Agreement;
the death or permanent disability of Employee;
at any time during the period October 9, 2002 to September 30, 2003, Employer
has not attained a cumulative EBITDA of at least a negative twenty five thousand
dollars (-$25,000); or
during the period October 9, 2002, to September 30, 2003, Employer has not
attained a positive cumulative EBITDA.
EBITDA shall be defined as Employer's accrued earnings before any
interest, income taxes, depreciation or amortization. EBITDA shall be calculated
by Employer's outside accountant, which calculation shall be final and binding
on Employer and Employee.
Any termination under (a), (b) or (d) above shall be effective ten (10)
days after written notice by Employer. Employee shall, however, have the
opportunity to cure a breach under (a), (b) or (d) above during the ten (10) day
period. If Employee cures the breach, the termination shall not be effective.
Any termination under (c), (e), (f) or (g) above shall be effective immediately.
For good reason, Employee may terminate this Agreement at any time upon
written notice provided to Employer. For purposes of this Agreement, the term
"good reason" shall be defined as the nonpayment of any salary or benefits
described on the attached Exhibit 1, or Employer's breach of another material
term of this Agreement. Any termination for good reason by Employee shall be
effective ten (10) days after written notice by Employee. Employer shall,
however, have the opportunity to cure such breach during the ten (10) day
period. If Employee cures the breach, the termination shall not be effective.
Without cause, either party may terminate this Agreement at any time
after November 30, 2002, effective thirty (30) days after written notice is
provided to the other party.
7. Confidential Information. For purposes of this Agreement,
"Confidential Information" shall be deemed to include all information and
materials furnished by Employer to Employee with respect to Employer's business,
including information transmitted in writing, orally, visually (e.g. browser
display) or on magnetic media, and including all proprietary information,
specifications, models, diagrams, flow charts, videotapes, audio tapes, forms,
data structures, graphics, other original works of authorship, product plans and
technologies, trade secrets, trade names or proposed trade names, knowhow,
ideas, marketing materials, lists of potential or actual clients, contracts,
pricing information, financial information, business plans and strategies, and
other financial and intellectual property relating to Employer and Employer's
business.
Except as authorized in writing by Employer, Employee will not
disclose, communicate, publish or use for the benefit of himself or any third
party any Confidential Information received, acquired, or obtained from
Employer. Employee also agrees that: a) the Confidential Information will be
held in confidence by Employee using the same degree of care, but no less than a
reasonable degree of care, as Employee uses to protect his own confidential
information of a like nature; b) he will take such steps as may be reasonably
necessary to prevent disclosure of the Confidential Information to others; c) in
the event Employee is legally required to disclose any portion of the
Confidential Information, Employee shall promptly notify Employer so that
Employer may take steps to protect its Confidential Information.
The obligations of this Section 7 shall terminate with respect to any particular
portion of Confidential Information which: a) was in the public domain at the
time of Employer's communication thereof to Employee; b) entered the public
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domain through no fault of Employee subsequent to the time of Employer's
communication thereof to Employee; c) was rightfully communicated by a third
party to Employee free of any obligation of confidence subsequent to the time of
Employer's communication thereof to Employee; or d) was developed by Employee
independently of and without reference to any Confidential Information or other
information that Employer has disclosed in confidence to Employee.
In no event shall Employee be deemed by virtue hereof to have acquired any right
or interest in or to the Confidential Information. Employee agrees that during
the term of his employment and for a period of five (5) years thereafter, he
will maintain the confidentiality of the Confidential Information.
All Confidential Information furnished to Employee by Employer shall remain the
property of Employer and shall be returned to Employer on the date of
termination of this Agreement with all hard copies or derivative works made
thereof. Any information provided by Employer which Employee has incorporated
into any software databases shall be deleted.
8. Covenant Not To Compete. Employee agrees that during the term of his
employment, and for a period of one (1) year thereafter, he will not directly or
indirectly, for himself or for any other person, proprietorship, partnership,
corporation or trust, or any other entity, as an individual or as an owner,
employee, agent, officer, director, trustee, or in any other capacity:
for the purposes of selling, installing or maintaining satellite television
systems or selling video, audio or data programming packages ("Restricted
Services"), Employee shall not solicit, participate or aid in the solicitation
of orders for Restricted Services, or sell any Restricted Services to any of
Employer's customers who were serviced by Employee, solicited by Employee or who
became customers of Employer as a result of any actions taken by Employee;
for the purpose of selling Restricted Services, Employee shall not solicit,
participate or aid in the solicitation of, or sell any Restricted Services to
any of Employer's customers who were customers, or had an ongoing business
relationship with Employer, at any time during the six (6) month period
preceding the termination of this Agreement;
contact, or aid or participate in the contact, including allowing the use of
Employee's name in connection with the contact of, any of Employer's customers
who were customers, or had an ongoing business relationship with Employer, at
any time during the six (6) month period preceding the termination of this
Agreement, for the purpose of diverting their purchases of Restricted Services
from Employer;
for the purpose of selling Restricted Services, Employee shall not solicit,
participate or aid in the solicitation of, represent or sell Restricted Services
on behalf of any of the companies that Employer represents at any time during
the six (6) month period preceding the termination of this Agreement.
for the purpose of selling Restricted Services, Employee shall not sell any of
the product lines (for example, DirecTV, Echostar, etc.) carried by Employer at
any time during the six (6) month period preceding the termination of this
Agreement.
solicit or contact or aid or participate in the contact, including allowing the
use of Employee's name in connection with the contact of, Employer's employees,
for the purpose of inducing them to terminate their employment with Employer;
engage in, conduct, promote, or participate in either as an owner, investor,
employee, officer, director, trustee, or agent, or in any other capacity
whatsoever, a business in competition with Employer in the sale and offering of
Restricted Services either directly or indirectly. The prohibitions and
covenants enumerated in this Section 8(g) shall bind Employee in the following
geographic area: Xxxxxx County, Indiana and all surrounding counties.
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Nothing in the foregoing provisions of this Section shall prohibit
Employee from purchasing for investment purposes only any stock or corporate
security traded or quoted on a national securities exchange or national market
system.
Employer and Employee agree that in the event of a breach of any of the
covenants and prohibitions contained in Sections 7 and 8 by Employee, Employer
shall suffer immediate, immeasurable and irreparable harm and damage, and
accordingly, the parties agree as follows:
(a) These covenants shall be construed as agreements independent of any
other provision of this Agreement, and the existence of any claim or cause of
action by Employee against Employer, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement of these covenants
by Employer;
(b) In the event of a violation of any of these covenants the terms of
all covenants shall be automatically extended for a period equal to the
violation;
Employer shall be entitled to recover reasonable attorney's fees incurred in the
enforcement of these covenants;
Each covenant is separate and distinct from every other covenant, and in the
event of the invalidity of any one covenant, the remaining covenants shall be
deemed independent and enforceable. Further, although the parties agree that the
scope, duration and territorial restrictions herein are reasonable and necessary
for the protection of Employer, the parties agree that the obligations with
respect to each county and the duration thereof are a separate covenant, and in
the event a Court should consider the territorial restrictions or duration too
extensive, the Court shall consider the reasonableness and enforceability of the
covenants with respect to each individual county and the duration thereof and
shall modify the provisions so as to be valid and fully enforceable for the
maximum scope, duration and geographic areas (but never for a larger scope,
longer period or greater area than set forth above) as the Court shall find to
be reasonable, necessary valid and legally enforceable;
These covenants are reasonable and necessary for the protection of Employer's
business interests, that irreparable injury will result to Employer if Employee
breaches any of these covenants, and that in the event of actual or threatened
breach of any of these covenants, Employer will have no adequate remedy at law.
Employee accordingly agrees that in the event of any actual or threatened breach
by Employee of any of these covenants, Employer shall be entitled to immediate
temporary injunctive and other equitable relief, without bond and without the
necessity of showing actual monetary damages, subject to hearing as soon
thereafter as possible. Nothing contained herein shall be construed as
prohibiting Employer from pursuing any other remedies available to it for such
breach or threatened breach, including the recovery of any damages which it is
able to prove; and
Employer would not have entered into this Agreement but for Employee's agreement
to be bound by and comply with the terms and conditions of this Agreement,
including, without limitation, Sections 7 and 8 hereof, and for Employee's
agreement that the scope, duration and territorial restrictions of these
covenants are reasonable.
Notices. Any notices required or permitted to be given under this Agreement
shall be in writing, and hand delivered or sent by certified mail, return
receipt requested, to the residence in the case of Employee, or to its principal
office in the case of Employer.
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Waiver of Breach. The waiver by Employer 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.
Assignment. Neither party shall assign his or its rights and obligations under
this Agreement, without the prior written consent of the other party.
Entire Agreement. This Agreement contains the entire agreement of the parties.
It may not be changed orally but only by an agreement in writing signed by the
party against whom enforcement of any waiver, change, modification, extension or
discharge is sought.
Attorney Fees. In the event any legal action or any other proceeding is brought
for the enforcement of this Agreement or because of an alleged dispute, breach,
default or misrepresentation in connection with any of the provisions of this
Agreement, the successful or prevailing party or parties shall be entitled to
recover reasonable attorney's fees and other costs incurred in that action or
proceeding, in addition to any other relief to which it or they may be entitled.
Governing Law. This Agreement shall be construed in accordance with and governed
by the laws of the State of Indiana.
IN WITNESS WHEREOF, the parties have executed this Agreement and caused
this Agreement to be executed on the day, month and year first above written.
STARQUEST WIRELESS, INC.
/s/ Xxxxxx X. Xxxxxxx
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
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Exhibit 1
During the term of this Agreement, Employer shall pay Employee as
follows:
Salary: $48,000 per year.
Benefits: Benefits comparable to the benefits provided to Employer's other
executive-level employees.
Salary will be re-evaluated within ninety (90) days.
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