Exhibit
10.35


 


EMPLOYMENT
AGREEMENT

OF

JOHN R. SPINA


 


 


THIS EMPLOYMENT AGREEMENT of JOHN R. SPINA (this
“Agreement”) is entered into this 04 day of February, 2003, and for all intents
and purposes is effective as of the 24th day of February, 2003, (the “Effective
Date”) by and between VENDINGDATA CORPORATION, a Nevada corporation (the
“Company”) and JOHN R. SPINA (the “Employee”).


 


RECITALS


 


WHEREAS, the Company desires to retain the services of
the Employee under the terms and conditions of this Agreement;


 


WHEREAS,
the Employee and the Company will receive benefits from this Agreement, and as
such, each agrees to be bound under the terms and conditions of this Agreement,
including the non-competition and non-disclosure provisions contained herein;


 


WHEREAS,
the Company desires the knowledge, skills and ability of the Employee for the
benefit of the Company;


 


WHEREAS,
the Employee wishes to be retained by the Company in accordance with the terms
of this Agreement;


 


WHEREAS,
the Employee recognizes the legitimate need of the Company for protection of
its confidential information; and


 


WHEREAS, the Company recognizes and acknowledges the
value of the Employee’s services and deems it necessary and desirable to retain
the Employee’s services for the period herein described.


 


NOW
THEREFORE, in consideration of the mutual promises set forth herein, the
Company and the Employee agree as follows:


 


1.             Employment.  The Company hereby retains the Employee upon
the terms and conditions hereinafter set forth, and the Employee hereby accepts
said terms and conditions.


 


2.             Term and Renewal.  Except as otherwise provided, this Agreement
shall commence as of February 24, 2003, and continue for a term of two (2)
years, subject to the early termination provisions of Article 8.  Upon the expiration of this Agreement, this
Agreement shall be considered renewed for regular successive one (1) year terms
unless either party submits a notice of termination not less than thirty (30)
days prior to the end of the preceding period.


 


3.             Duties.  The Company hereby retains the Employee as
Chief Financial Officer, and the Employee hereby promises to perform the duties
related thereto and to perform such other duties as the Company may, from time
to time, assign.  As directed by the
appropriate representative(s) of the Company, the Employee shall also render
services for and perform duties for entities related to the Company and for
persons or entities having a contractual relationship with the Company
requiring the Company to provide such services.  The Employee shall perform all of these duties at such place or
places and at such times as the Company shall in good faith require and as the
interest, needs, business, or opportunity of the Company shall require.  The Company retains the right to supervise
the Employee in the performance of his duties.


 


4.             Time and Efforts
of Employee.  So long as this
Agreement continues in effect, the Employee promises to devote his time and
energies to the business affairs of the Company as necessary to achieve the
business objectives of the Company, to use his best efforts, skills, and
abilities to promote the Company’s interest, to perform the duties described in
Article 3 of this Agreement, and to perform such other duties as may be
assigned to him by the Company.


 


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5.             Compensation and
Benefits.


 


5.1           Compensation.  For all services rendered by the Employee
under this Agreement and the Employee’s obligations under Articles 6 and 7
herein, the Employee shall be compensated as follows:


 


(a)      Base
Salary.  From the Effective Date,
the Employee shall receive a “Base Salary” of not less than One Hundred
Seventy-Five Thousand Dollars ($175,000) per annum during the term of this
Agreement, or until such time as a new Base Salary is negotiated.  The Base Salary shall be reviewed on the six
month anniversary of the Effective Date and shall be reviewed and increased at
least on an annual basis, or more frequently, and shall be payable in equal
bi-weekly installments.


 


(b)     Stock
Options.  In addition to the Base
Salary, the Employee shall receive “Stock Options” to purchase fifty thousand
(50,000) shares of the Company’s $.001 par value common stock (“Shares”) under
the following terms and conditions:


 


(i)            Upon
the Effective Date of this Agreement, the Employee shall have a vested right to
acquire sixteen thousand (16,000) Shares at Three Dollars ($3.00) per Share.


 


(ii)           Upon
the Employee fulfilling his obligations through the first year of the term of
this Agreement, the Employee shall have the right to acquire up to an
additional seventeen thousand (17,000) Shares at Three Dollars ($3.00) per
Share.  The Stock Options to be issued
under this subparagraph shall be vested in the Employee on the one year
anniversary of this Agreement, subject to the requirement that Employee
continue to be employed by the Company on the one year anniversary of this
Agreement.


 


(iii)          Upon the Employee fulfilling his obligations,
though the second year of the term of this Agreement, the Employee shall have
the right to acquire up to an additional seventeen thousand (17,000) Shares at
Three Dollars ($3.00) per Share.  The
Stock Options to be issued under this subparagraph shall be vested in the
Employee on the second year anniversary of this Agreement, subject to the
requirement that Employee continue to be employed by the Company on the second
year anniversary of this Agreement.


 


(iv)          The
Stock Options must be exercised within five (5) years from the date the
Employee’s rights are vested hereunder. 
The Shares will be issued within thirty (30) days after the Employee
notifies the Company of his intent to exercise the options under this Agreement
and tenders the purchase price to the Company. 
The Company offers no warranty as to the tradability of the Shares or as
to whether such Shares will be registered with the Securities and Exchange
Commission.


 


(v)           If
the Company is to be sold, the portion of the Stock Options granted pursuant to
paragraph 5.1(b)(i-iii) of this Agreement that have not yet vested shall vest
in the Employee thirty (30) days prior to such sale.


 


(vi)          If
the Company is sold, all of the Stock Options granted to the Employee by virtue
of paragraph 5.1(b) must be exercised as of the last business day prior to the
sale of the Company, unless the Employee and the purchaser of the Company agree
otherwise.


 


(vii)         For purposes of paragraph 5(b)(v) hereof, the
Company shall notify the Employee in writing of (1) the impending sale, (2) the
right of the Employee to exercise the Stock Options, and (3) the terms and
conditions of the proposed sale of the Company.  For purposes of this Agreement, the Company shall be deemed sold
if substantially all of its assets are sold, including patents and goodwill, or
the Company’s stock is sold or transferred causing the person or persons who
currently have majority control of the Company to be the beneficial owners of
less than twenty (20%) of the issued and outstanding stock of the Company.  This paragraph does not apply to transfers
of stock of the Company: (1) by an assignment to a revocable living trust in
which the holder is and remains a trustee and a beneficiary, or (2) by reason
of death of the holder.  It is within
the Employee’s discretion to exercise the Stock Options prior to the proposed
sale.  Any Stock Options vested in this
subparagraph shall remain vested in the Employee, whether or not they are
exercised before the sale, under the terms of subparagraph (iv).


 


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5.2           Payment of
Compensation.   All payments made
hereunder shall be made to the Employee, unless the Employee notifies the
Company otherwise.


 


5.3           Other Benefits.  The Employee shall be entitled to
participate on a reasonable basis in any deferred compensation, medical
reimbursement, pension, profit sharing, thrift, savings, vacation, group
insurance, or other plan or program, and to receive any other benefits for
which he is eligible and which the Company may provide for him or for its
employees generally.


 


5.4           Car Allowance.  The Employee shall be entitled to a car
allowance in the amount of Five Hundred Dollars ($500.00) per month during the
term of this Agreement.


 


5.5           Moving Expenses.  The Employee, upon the presentation to the
Company of relevant receipts, shall be entitled to a one-time reimbursement of
actual moving expenses up to a maximum amount of Ten Thousand Dollars
($10,000). The Company shall reimburse the Employee for such expenses at least
thirty (30) days after the presentation, by Employee, of the necessary
documentation.


 


6.             Confidential
Information.


 


6.1           Disclosure of
Confidential Information.


 


(a)      Definition.  “Confidential Information” shall mean and
include: (i) all records of the accounts of customers, route books, customer
lists, and any other records and books relating in any matter to the customers
and/or suppliers of the Company (whether such records, books, or lists are
prepared by the Employee or otherwise come into the possession or use of the
Employee); (ii) any product information, technical data, know-how, specifications,
processes, drawing, sketches, formulas, computations, and any other information
of any kind whatsoever, whether written or not, concerning any process,
manufacture, composition of matter, plant, design, idea, method, system, or
plan in which the Company has a possessory interest and which becomes known to
Employee; and (iii) any accounting, sales, advertising, marketing or management
information, methods or techniques, any business plans, any computer programs
and routines of the Company and any other information of any kind whatsoever,
whether written or not, concerning, directly or indirectly, the Company, its
plans, programs or operations, which information is not generally known in the
businesses or industries in which the Company is or may become engaged during
Employee’s period of employment with the Company or during the term of this
Agreement.


 


(b)      Restriction
on use.  Any Confidential
Information received or developed by the Employee shall be used only in the
Employee’s conduct of the Company’s business. 
The Confidential Information shall not be used by the Employee for any
other purpose unless otherwise directed or authorized in writing by the Board
of Directors.  The Employee acknowledges
that the Company’s primary assets consist of its gaming products and
accessories.  Any unauthorized
disclosure of the design or marketing of these products by the Employee shall
violate this Agreement.


 


(c)      Protection
of Confidential Information.  The
Company and the Employee expressly recognize and acknowledge that any
Confidential Information disclosed to or developed by Employee will not, at any
time either during or after the term of this Agreement, in any manner, either
directly or indirectly, be divulged, disclosed, or communicated to any person,
firm or corporation, or any other business entity by the Employee, nor shall
the Employee use for his own benefit for any purpose other than the exclusive
benefit of the Company, its subsidiaries, successors, or assigns, Confidential
Information or any information whatsoever concerning matters effecting or
relating to the business of the Company which the Employee knows or has reason
to know would be valuable to competitors or potential competitors of the
Company, including, but not limited to, Confidential Information or information
relating to the Company’s relationships with actual or potential customers or
suppliers and to the needs and requirements of any such actual or potential
customers.  Furthermore, but not by way
of limitation of the foregoing, the Employee shall not: (i) make known to any
firm, person or corporation the names or addresses of any of the customers of
the Company or any other information pertaining to them; or (ii) call on,
solicit, or take away or attempt to call on, solicit, or take away any of the
customers of the Company on whom the Employee called or with whom he became
acquainted during his tenure with the Company, either for himself or for any
other person, firm or corporation.


 


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6.2           Books and Records.   The Employee further promises that he shall
not, without the prior written approval of the Company, make copies of any
books, drawings, documents, records, or other written or printed, photographic,
encoded, taped, electrostatically or electromagnetically encoded data or
information of whatever nature (the “Documents”) of the Company; that he shall
not, without the prior written approval of the Company, remove any of the
foregoing from the premises of the Company, and that he shall not, without the
prior written approval of the Company, make available to third parties access
to the Documents of the Company.  The
Employee agrees that all records and books relating in any manner whatsoever to
the customers (whether actual or potential) of the Company, whether prepared by
the Employee or otherwise coming into his possession, shall be the exclusive
property of the Company regardless of who actually purchased or created the
original book or record.  All such books
and records shall be immediately returned to the Company by the Employee upon
any termination of this Agreement.  If
the Employee purchases an original book or record, he shall immediately inform
the Company, which shall immediately reimburse the Employee.


 


6.3           Limitation.   Nothing contained in this Article or in any
other part of this Agreement shall restrict the ability of the Employee to
make, with the written consent of the Company and in the ordinary course of his
employment, such disclosures as may be necessary or appropriate for the
effective and efficient discharge of his duties to the Company.


 


6.4           Term.  Notwithstanding any other provision of this
Agreement, the provisions of this Article 6 shall continue in full force and
effect following the expiration or termination of this Agreement.


 


7.             Employee’s
Covenant Not To Compete.


 


7.1           Covenant Not to
Compete.


 


(a)      General.  The Company and the Employee expressly
recognize and acknowledge that the Company is engaged in a business which is
highly competitive, that any knowledge of the Company’s Confidential
Information or business affairs would give a competitor or potential competitor
an unfair competitive advantage over the Company, that consulting or
employment, directly or indirectly, of the Employee anywhere  in the area in which the Company conducts
its business (including, but not limited to gaming and non-gaming, security and
productivity equipment and products) would give to such competitor an unfair
competitive advantage, and that the Employee possesses valuable skills and
knowledge.  In recognition of the
aforementioned, the Employee and the Company hereby expressly agree that the
restrictions on competition by the Employee contained in this Article 7 are
reasonable, will not overburden the Employee, and are in the best interests of
both the Employee and the Company.


 


(b)      Time
Period and Area Covered.   The
Employee promises that, during the term of this Agreement, as set forth in
Article 2 hereof, and for a period of one (1) year after the expiration or
termination of this Agreement, he shall not, either directly or indirectly,
engage in competition with the Company, or with any subsidiary, successor or
appointee of the Company, as constituted during the term of this Agreement as
of his resignation, departure, discharge or termination with the Company in
Nevada, and within a fifty (50) mile radius of any other: (i) place of business
operated by the Company or (ii) location, establishment or business where the
equipment, product, or technology of the Company is operating as of such
date.  The Employee acknowledges that
the Company’s business is national and international in scope and that the
solicitation of the Company’s domestic or international clients in competition
with the Company is a violation of this Agreement.


 


(c)      Affiliations
Covered.  The Employee further
promises that, during the term of this Agreement, as set forth in Article 2
hereof and for a period of one (1) year after the expiration or other
termination of this Agreement, he shall not engage, directly or indirectly, as
a proprietor, partner, shareholder, director, officer, employee, agent, or in
any other capacity or manner whatsoever, in any business activity competitive
with the business of the Company or of any subsidiary, successor or appointee
of the Company, as constituted during his employment.


 


(d)      Board
of Directors Approval.  Either or
both of the provisions contained in Subsections (b) and (c) above may be waived
at any time in writing by the Board of Directors of the Company, in its sole
discretion.  No such waiver shall be
considered as a waiver of any other term, covenant or provision of this
Agreement, nor shall it be considered a waiver of any subsequent action by the
Employee.


 


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7.2           Limitation.  Nothing contained in this Article 7 shall
prevent the Employee from purchasing or causing or permitting to be purchased
for his direct or indirect benefit, securities of any corporation whose
securities are regularly traded on any national or regional securities
exchange; provided, however, that such purchase must not, without the written
approval of the Company, result in the direct or indirect beneficial ownership
of more than one percent of any outstanding class of equity securities of any
corporation engaged directly or indirectly in any trade or business activities
competitive with that carried on by the Company.


 


8.             Termination.


 


8.1           Grounds for
Termination.  This Agreement shall
terminate as it relates to the Employee upon the first to occur of the
following events:


 


(a)      The
death of the Employee;


 


(b)      Immediately
upon five (5) days written notice from the Company to the Employee “for
cause”.  “For cause” is defined as:


 


(i)   a breach of the terms and conditions of
this Agreement by the Employee (other than a breach described in subparagraph
8.1(b)(ii) herein below), including the performance of the Employee’s
obligations and duties hereunder, which remains uncured for a period of twenty
(20) days after written notice by the Company to the Employee of any such
breach; or


 


(ii)   a breach of the terms and conditions of
this Agreement by the Employee, which consists of dishonest or criminal
conduct, or which constitutes gross negligence by the Employee in failing to
perform his duties and obligations under this Agreement.


 


(c)      Upon
the passing of fifteen (15) days after notice from the Company to the Employee
of a bona fide decision by the Company to terminate its business.


 


8.2           Severance Pay.  If this Agreement is terminated for any
reason, other than for a reason under Section 8.1, the Company shall pay the
Employee, upon termination, severance pay in a one time lump sum equal to seven
(7) months of the Employee’s Base Salary in effect at the time of severance.


 


8.3           Effect of
Termination on Stock Options.  Under
no circumstances shall the Employee be entitled to any Stock Option that has
not vested or accrued prior to the Employee’s termination.


 


8.4           Effect of
Termination on Articles 6 and 7.  
Notwithstanding the provisions of this Article, the provisions of
Articles 6 and 7 will not terminate upon the occurrence of an event described
above, but will continue in full force and effect for the periods described in
those Articles.  The severance pay shall
constitute additional consideration for the enforcement of such provisions.


 


9.             Miscellaneous.


 


9.1           Assignment of
Agreement.  The knowledge and skills
of the Employee are unique, and his services bargained for by this Agreement
may not be delegated by the Employee to any other person.  This Agreement shall inure to the benefit of
and be binding upon the Employee and his testate or intestate distributees, and
the Company, its successors and assigns including, without limitation, any
person, partnership, trust, corporation or other legal entity which may acquire
all or substantially all of the Company’s assets or which may acquire a
controlling interest, either direct or beneficial, in the Company or with or
into which the Company may be consolidated or merged.  As used in this Agreement, the term “Company”, shall include any
such successors or assignees.


 


9.2           Remedies.   It is agreed that any breach of Article 6
or 7 of this Agreement by the Employee will result in irreparable injury to the
Company and will authorize recourse by the Company to equitable remedies,
including, but not limited to, affirmative or negative injunctive relief.  It is further agreed that in the event of
such breach, violation, or evasion of any of the Articles hereinbefore
mentioned, or of any other Article herein, the Company may forthwith terminate
this Agreement and thereafter be released from all claims of the Employee


 


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hereunder, provided, however, that such a termination
shall not release the Employee from any warrant, covenant, term, or condition
under Articles 6 or 7 of this Agreement. 
Nothing contained herein shall be deemed to obligate the Company to
undertake such termination, and nothing contained herein shall be deemed to
preclude the Company from pursuing any remedy, whether legal or equitable,
which is available to it in the event of any breach, violation or evasion of
any Article of this Agreement.


 


9.3           Enforcement Costs.   The prevailing party shall be entitled to
all costs of enforcing this Agreement, regardless of whether an action at law
or in equity is commenced or maintained, including but not limited to, court
costs and reasonable attorneys’ fees.


 


9.4           Waiver of Breach.   The waiver of the breach of any term or
condition of this Agreement shall not be deemed to constitute the waiver of any
other or subsequent breach of the same or any other terms or conditions.


 


9.5           Severability.   All terms and conditions contained in this
Agreement are severable, and in the event that any of them shall be held or
considered to be unenforceable by any court of competent jurisdiction, this
Agreement shall be interpreted as if such unenforceable term or condition was
not contained herein.


 


9.6           Applicable Law.   This Agreement shall be governed by and
interpreted according to the laws of the State of Nevada. Each party submits to
the personal jurisdiction of all courts, whether Federal or State, within
Nevada, and agrees that any action pertaining to this Agreement shall be
brought in a court in Clark County, Nevada.


 


9.7           Notice.  Any notice required or permitted to be given
under this Agreement shall be sufficient if in writing, and if sent by
registered mail to his last residence as recorded on the records of the Company
in the case of the Employee, or to the principal office of the Company, in the
case of the Company.


 


9.8           Modification of
Agreement.  No waiver or
modification of this Agreement or of any terms or conditions contained herein
shall be valid unless in writing and signed by the parties hereto.


 


9.9           Gender, Number, Etc.   Where applicable, the singular includes the
plural, the masculine includes the feminine, and vice versa.


 


IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.


 


	
   

  	
  VENDINGDATA CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BY:

  	
    /s/Stacie L. Brown, Attorney-In-Fact for

  	
   

  
	
   

  	
   

  	
   Steven J. Blad

  
	
   

  	
  Its:

  	
   President & Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  EMPLOYEE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   /s/John R. Spina

  	
   

  
	
   

  	
  John
  R. Spina

  



 


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