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 Jitu Banker (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.
<PAGE>
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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<PAGE>
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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<PAGE>
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; a
