EXHIBIT 10.28
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is made as of September 1,
2005, between Gateway International Holdings, Inc., a corporation organized
under the laws of the State of Nevada (the "Company"), and Xxxx Xxxxxx (the
"Executive").
NOW, THEREFORE, the Company and Executive hereby agree as follows:
1. EMPLOYMENT.
1.1 General. The Company hereby employs Executive in the capacity of Chief
Financial Officer of the Company commencing with the Effective Date (as defined
in Section 2). Executive hereby accepts such employment, upon the terms and
subject to the conditions herein contained.
1.2 Duties. During Executive's employment with the Company, Executive
shall report directly to the Company's Chief Executive Officer and shall be
responsible for performing those duties consistent with the position of Chief
Financial Officer and as may from time to time be reasonably assigned to or
requested of Executive by the Company's Chief Executive Officer. Executive shall
use his reasonable efforts to perform faithfully and effectively such
responsibilities. Executive shall conduct all of his activities in a manner so
as to maintain and promote the business and reputation of the Company.
1.3 Full-Time Position. Executive, during his employment with the Company,
shall devote all of his business time, attention and skills to the business and
affairs of the Company. Executive shall not, during the term of this Agreement,
be engaged in any other business activity without the prior consent of the Chief
Executive Officer of the Company; provided, however, that this restriction shall
not be construed as preventing Executive from investing his personal assets in
passive investments in business entities which are not in competition with the
Company or its affiliates.
1.4 Business Opportunity. Executive hereby agrees to promote and develop
all business opportunities that come to his attention relating to current or
anticipated future business of the Company, in a manner consistent with the best
interests of the Company and with his duties under this Agreement. Should
Executive discover a business opportunity that does not relate to the current or
anticipated future business of the Company, he shall first offer such
opportunity to the Company. Should the Board of Directors of the Company not
exercise its right to pursue this business opportunity within a reasonable
period of time, not to exceed sixty (60) days, then Executive, with the consent
of the Board of Directors, may develop the business opportunity for himself;
provided, however, that such development may in no way conflict or interfere
with the duties owed by Executive to the Company under this Agreement. Further,
Executive may develop such business opportunities only on his own time, and may
not use any service, personnel, equipment, supplies, facility, or trade secrets
of the Company in their development. As used herein, the term "business
opportunity" shall not include business opportunities involving investment in
publicly traded stocks, bonds or other securities, or other investments of a
personal nature.
1.5 Representations of Executive. To induce the Company to enter into this
Agreement, Executive represents and warrants to the Company that as of the
Effective Date (a) Executive will not be a party or subject to any employment
agreement or arrangement with any other person, firm, company, corporation or
other business entity, (b) Executive will not be subject to restraint,
limitation or restriction by virtue of any agreement or arrangement, or by
virtue of any law or rule of law or otherwise which would impair Executive's
right or ability to (i) enter the employ of the Company, or (ii) perform fully
his duties and obligations pursuant to this Agreement, and (c) to the best of
Executive's knowledge no material litigation is pending or threatened against
any business or business entity owned or controlled or formerly owned or
controlled by Executive.
1.6 Location of Employment. Executive's principal place of employment
during his employment with the Company shall be in Orange County, California.
2. TERM. The term of this Agreement shall commence on September 1, 2005 (the
"Effective Date"). The initial term of this Agreement (the "Initial Term") shall
be for a period commencing on the Effective Date and shall continue for a period
of three (3) year from the date hereof, unless sooner terminated as provided in
Section 4.1. Thereafter, this Agreement shall automatically renew for successive
one year terms unless either party shall have given written notice to the other
party not less than 60 days prior to the expiration of the Initial Term or any
successive term of its intent not to renew this Agreement (the Initial Term,
together with any subsequent employment period or periods, being referred to
herein as the "Term").
3. COMPENSATION AND BENEFITS.
3.1 Salary. The Company shall pay to Executive, and Executive shall
accept, as full compensation for any and all services rendered and to be
rendered by him to the Company in all capacities during the Term of his
employment under this Agreement, a base salary at the monthly rate of $13,000
("Base Salary"), payable in accordance with the regular payroll practices of the
Company.
3.2 Employee Benefits. The Executive shall be entitled to participate in
tax-qualified and nonqualified deferred compensation and retirement plans, group
term life insurance plans, short-term and long-term disability plans, employee
benefit plans, practices, and programs maintained by the company and made
available to similarly situated executives generally, and as may be in effect
from time to time. Executive also shall be entitled to reimbursement of
reasonable automobile expenses, including repairs, gas and insurance and
cellular phone bills.
3.3 Vacation. Executive shall be entitled to paid vacation in accordance
with the Company's standard vacation policies, with such vacation to be
scheduled and taken in accordance with the Company's standard vacation policies.
3.4 Business Expenses. The Company shall reimburse Executive for any and
all necessary, customary and usual business expenses, properly receipted in
accordance with Company policies reasonably incurred by Executive on behalf of
the Company.
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3.5 Withholding. All compensation shall be subject to customary
withholding tax and other employment taxes as are required with respect to
compensation paid by a corporation to an employee.
3.6 Signing Bonus. Upon execution hereof, the Company shall issue to the
Executive 300,000 restricted shares of the Company's common stock as a signing
bonus (the "Signing Bonus"). This Signing Bonus is offered in anticipation of
the contributions Executive has previously made on behalf of the Company and
will make to the Company during the Initial Term.
4. TERMINATION OF EMPLOYMENT.
4.1 Events of Termination. Executive's employment with the Company shall
terminate upon the occurrence of any one or more of the following events:
4.1.1 Death. In the event of Executive's death, Executive's
employment shall terminate on the date of death.
4.1.2 Disability. In the event of Executive's Disability (as
hereinafter defined), the Company shall have the option to terminate Executive's
employment by giving a notice of termination to Executive. The notice of
termination shall specify the date of termination, which date shall not be
earlier than thirty (30) days after the notice of termination is given. For
purposes of this Agreement, "Disability" shall mean a physical or mental
impairment which substantially limits a major life activity of Executive and
which renders Executive unable to perform the essential functions of his
position, even with reasonable accommodation which does not impose an undue
hardship on the Company, which condition continues for more than 120 consecutive
days or more than 180 days out of 365 consecutive days. The Board of Directors
shall have the right, in good faith, to make the determination of Disability
under this Agreement based upon information supplied by Executive and/or his
medical personnel, as well as information from medical personnel (or others)
selected by the Company or its insurers.
4.1.3 Termination by the Company for Cause. The Company may, at its
option, terminate Executive's employment for Cause (as hereinafter defined),
based on objective factors determined in good faith by a majority of the Board
of Directors, by giving a notice of termination to Executive specifying the
reasons for termination and, if Executive shall fail to cure same within ten
(10) days of his receiving the notice of termination, his Employment shall
terminate at the end of such 10-day period; provided that in the event the Board
of Directors in good faith determines that the underlying reasons giving rise to
such determination cannot be cured, then said cure period shall not apply and
Executive's employment shall terminate on the date of Executive's receipt of the
notice of termination. "Cause" shall mean (a) Executive's conviction of, guilty
or "no contest" plea to, or confession of guilt of a felony, or (b) a willful
act by Executive which constitutes gross misconduct and which is materially
injurious to the Company, including, but not limited to, theft, fraud or other
illegal conduct.
4.1.4 Termination by Executive. Executive may terminate Executive's
employment for any reason whatsoever by giving written notice of termination to
the Company. Executive's employment shall terminate on the earlier of (a) the
date, following the date of the notice of termination, upon which a suitable
replacement for Executive is found by the Company or (b) sixty (60) days after
the date of receipt by the Company of the notice of termination.
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4.2 Certain Obligations of the Company Following Termination of
Executive's Employment. Following the termination of Executive's employment
under the circumstances described below, the Company shall pay to Executive in
accordance with its regular payroll practices the following compensation and
provide the following benefits:
4.2.1 Death. In the event that Executive's employment is terminated
by reason of Executive's death, Executive's estate shall be entitled to the
following payments:
(a) Base Salary through the date Executive's employment is
terminated;
(b) Any additional compensation prorated to the date of death
of Executive; and
(c) The Company shall pay to Executive's estate the amounts,
and shall provide all benefits generally available under the
employee benefit plans, policies and practices of the Company,
determined in accordance with the applicable terms and provisions of
such plans, policies and practices in each case, as accrued to the
date of termination or otherwise payable as a consequence of
Executive's death.
4.2.2 Disability. In the event that Executive's employment is
terminated by reason of Executive's Disability, Executive shall be entitled to
the following payments:
(a) Base Salary through the date Executive's employment is
terminated;
(b) Any additional compensation, prorated to the date of
Executive's termination due to Executive's Disability; and
(c) The Company shall pay to Executive the amounts and shall
provide all benefits generally available under the employee benefit
plans, policies and practices of the Company, determined in
accordance with the applicable terms and provisions of such plans,
policies and practices in each case, as accrued to the date of
termination or otherwise payable as a consequence of Executive's
Disability.
4.2.3 Reserved.
4.2.4 Termination by Executive or by the Company for Cause. In the
event Executive's employment is terminated by Executive pursuant to Section
4.1.4 hereof ("Termination by Executive") or by the Company pursuant to Section
4.1.3 hereof ("Termination by the Company for Cause"), Executive shall be
entitled to no further compensation or other benefits under this Agreement
except as to that portion of any unpaid Base Salary and other benefits accrued
and earned by him hereunder, up to and including the effective date of such
termination. In addition, Executive shall be entitled to receive any additional
compensation earned but not yet paid with respect only to any fiscal year prior
to the fiscal year of termination.
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4.3 Nature of Payments. All amounts to be paid by the Company to Executive
pursuant to this Section 4 are considered by the parties to be severance
payments. In the event such payments are treated as damages, it is expressly
acknowledged by the parties that damages to Executive for termination of
employment would be difficult to ascertain and the above amounts are reasonable
estimates thereof.
4.4 Duties Upon Termination. Upon termination of Executive's employment
with the Company pursuant to Sections 4.1.1 through 4.1.4 hereof or upon
expiration of the Term, Executive shall be released from any duties and
obligations hereunder (except those duties and obligations set forth in Section
5). Upon termination of Executive's employment with the Company pursuant to
Sections 4.1.1 through 4.1.4 hereof, the obligations of the Company to Executive
shall be as set forth in Section 4.2 hereof.
5. RESTRICTIVE COVENANTS.
5.1 Executive acknowledges that (i) he has a major responsibility for the
operation, administration, development and growth of the Company's business,
(ii) his work for the Company has brought him and will continue to bring him
into close contact with confidential information of the Company and its
customers, and (iii) the agreements and covenants contained in this Section 5
are essential to protect the business interest of the Company and that the
Company will not enter into this Agreement but for such agreements and
covenants. Accordingly, the Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the
Term of this Agreement and for a period of twelve (12) months following the
termination of this Agreement (the "Termination Period"), Executive shall not,
directly or indirectly, compete with respect to any services or products of the
Company which are either offered or are being developed by the Company; or,
without limiting the generality of the foregoing, be or become, or agree to be
or become, interested in or associated with, in any capacity (whether as a
partner, shareholder, owner, officer, director, executive, principal, agent,
creditor, trustee, consultant, co-venturer or otherwise) with any individual,
corporation, firm, association, partnership, joint venture or other business
entity, which competes with respect to any services or products of the Company
which are either offered or are being developed by the Company; provided,
however, that Executive may own, solely as an investment, not more than one
percent (1%) of any class of securities of any publicly held corporation in
competition with the Company whose securities are traded on any national
securities exchange in the United States of America.
5.1.2 During the Term of this Agreement and during the Termination
Period, Executive shall not, directly or indirectly, (i) induce or attempt to
influence any employee of the Company to leave its employ, (ii) aid or agree to
aid any competitor, customer or supplier of the Company in any attempt to hire
any person who shall have been employed by the Company within the twelve (12)
month period preceding such requested aid, or (iii) induce or attempt to
influence any person or business entity who was a customer or supplier of the
Company during any portion of said period to transact business with a competitor
of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period, if
applicable, and thereafter, Executive shall not other than in the performance of
his duties disclose to anyone any information about the affairs of the Company,
including, without limitation, trade secrets, trade "know-how", inventions,
customer lists, business plans, operational methods, pricing policies, marketing
plans, sales plans, identity of suppliers or customers, sales, profits or other
financial information, which is confidential to the Company or is not generally
known in the relevant trade, nor shall Executive make use of any such
information for his own benefit. Any technique, method, process or technology
used by the Company shall be considered a "trade secret" for the purposes of
this Agreement.
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5.1.4 Executive hereby agrees that all know-how, documents, reports,
plans, proposals, marketing and sales plans, client lists, client files and
materials made by him or by the Company are the property of the Company and
shall not be used by him in any way adverse to the Company's interests.
Executive shall not deliver, reproduce or in any way allow such documents or
things to be delivered or used by any third party without specific direction or
consent of the Board of Directors of the Company. Executive hereby assigns to
the Company any rights that he may have in any such trade secret or proprietary
information.
5.2 If Executive breaches, or threatens to commit a breach of Section 5.1
(the "Restrictive Covenants"), the Company shall have the following rights and
remedies, each of which shall be enforceable, and each of which is in addition
to, and not in lieu of, any other rights and remedies available to the Company
at law or in equity.
5.2.1 Executive shall account for and pay over to the Company all
compensation, profits, and other benefits, after taxes, which inure to
Executive's benefit which are derived or received by Executive or any person or
business entity controlled by Executive resulting from any action or
transactions constituting a breach of any of the Restrictive Covenants.
5.2.2 Notwithstanding the provisions of subsection 5.2.1 above,
Executive acknowledges and agrees that in the event of a violation or threatened
violation of any of the provisions of Section 5, the Company shall have no
adequate remedy at law and shall therefore be entitled to enforce each such
provision by temporary or permanent injunctive or mandatory relief obtained in
any court of competent jurisdiction without the necessity of proving damages,
posting any bond or other security, and without prejudice to any other rights
and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to
be invalid or unenforceable, the same shall not affect the remainder of the
covenant or covenants, which shall be given full effect, without regard to the
invalid or unenforceable portions. Without limiting the generality of the
foregoing, if any of the Restrictive Covenants, or any part thereof, is held to
be unenforceable because of the duration of such provision or the area covered
thereby, the parties hereto agree that the court making such termination shall
have the power to reduce the duration and/or area of such provision and, in its
reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce
the Restrictive Covenants upon the courts of any jurisdiction within the
geographical scope of such Restrictive Covenants. In the event that the courts
of any one or more of such jurisdictions shall hold such Restrictive Covenants
wholly unenforceable by reason of the breadth of such scope or otherwise, it is
the intention of the parties hereto that such determination not bar or in any
way affect the Company's right to the relief provided above in the courts of any
other jurisdictions within the geographical scope of such Restrictive Covenants,
as to breaches of such covenants in such other respective jurisdictions, the
above covenants as they relate to each jurisdiction being, for this purpose,
severable into diverse and independent covenants.
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6. MISCELLANEOUS PROVISIONS.
6.1 Severability. If in any jurisdiction any term or provision hereof is
determined to be invalid or unenforceable, (a) the remaining terms and
provisions hereof shall be unimpaired, (b) any such invalidity or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction and (c) the invalid or
unenforceable term or provision shall, for purposes of such jurisdiction, be
deemed replaced by a term or provision that is valid and enforceable and that
comes closest to expressing the intention of the invalid or unenforceable term
or provision.
6.2 Execution in Counterparts. This Agreement may be executed in one or
more counterparts, and by the different parties hereto in separate counterparts,
each of which shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
6.3 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed duly given when delivered by
hand, or when delivered if mailed by registered or certified mail or private
courier service, postage prepaid, return receipt requested or via facsimile
(with written confirmation of receipt) as follows:
If to Executive: Xxxx Xxxxxx
00 Xxxxxx
Xxxxxxx Xxxxx, XX 00000
Facsimile: 949/595-0219
If to the Company: Gateway International Holdings, Inc.
0000 Xxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
Facsimile:
Attn.: Chief Executive Officer
or to such other address as a party hereto shall have designated by like notice
to the other party hereto.
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6.4 Amendment. No provision of this Agreement may be modified, amended,
waived or discharged in any manner except by a written instrument executed by
the Company and Executive.
6.5 Entire Agreement. This Agreement constitutes the entire agreement of
the parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings of the parties hereto, oral or written, with
respect to the subject matter hereof.
6.6 Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California applicable to contracts made
and to be wholly performed therein without regard to its conflicts or choice of
law provisions.
6.7 Headings. The headings contained herein are for the sole purpose of
convenience of reference and shall not in any way limit or affect the meaning or
interpretation of any of the terms or provisions of this Agreement.
6.8 Binding Effect; Successors and Assigns. Executive may not delegate his
duties or assign his rights hereunder. This Agreement shall inure to the benefit
of, and be binding upon, the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns.
6.9 Waiver, etc. The failure of either of the parties hereto to at any
time enforce any of the provisions of this Agreement shall not be deemed or
construed to be a waiver of any such provision, nor to in any way affect the
validity of this Agreement or any provision hereof or the right of either of the
parties hereto to thereafter enforce each and every provision of this Agreement.
No waiver of any breach of any of the provisions of this Agreement shall be
effective unless set forth in a written instrument executed by the party against
whom or which enforcement of such waiver is sought, and no waiver of any such
breach shall be construed or deemed to be a waiver of any other or subsequent
breach.
6.10 Representations and Warranties. Executive and the Company hereby
represent and warrant to the other that: (a) he or it has full power, authority
and capacity to execute and deliver this Agreement and to perform his or its
obligations hereunder, (b) such execution, delivery and performance will not
(and with the giving of notice or lapse of time or both would not) result in the
breach of any agreements or other obligations to which he or it is a party or he
or it is otherwise bound and (c) this Agreement is his or its valid and binding
obligation in accordance with its terms.
6.11 Enforcement. Except as otherwise provided herein, if any party
institutes legal action or other dispute resolution proceedings to enforce or
interpret the terms and conditions of this Agreement, the prevailing party shall
be awarded reasonable attorneys' fees at all levels of the proceeding, and the
expenses and costs incurred by such prevailing party in connection therewith.
6.12 Arbitration. The parties agree to arbitrate any disputes arising
under this Agreement in as expeditious a manner as possible through the
commercial rules of the American Arbitration Association in the County of
Orange, California, or such other place that is mutually agreed upon by the
parties. Further, the parties hereby waive any objection based on personal
jurisdiction, venue or forum non-conveniens in any arbitration or action brought
under this Agreement. The decision and award rendered by the arbitrators shall
be final and binding. Judgment upon the award may be entered in any court having
jurisdiction thereof.
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6.13 Continuing Effect. Where the context of this Agreement requires, the
respective rights and obligations of the parties shall survive any termination
or expiration of the term of this Agreement.
6.14 Construction. Both parties have cooperated in the drafting and
preparation of this Agreement. Hence, in any construction to be made of this
Agreement, the same shall not be construed against any party on the basis that
the party was the drafter.
6.15 Expenses. Each party to this Agreement agrees to bear his or its own
expenses in connection with the negotiation and execution of this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by the
parties hereto as of the date first above written.
"COMPANY"
GATEWAY INTERNATIONAL HOLDINGS, INC.,
a Nevada corporation
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
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Title: CEO
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"EXECUTIVE"
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
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