EMPLOYMENT AGREEMENT
Golf Ventures, Inc., a Utah Corporation (the "Company"), agrees to
employ Xxxxx Xxxxxxx (Employee) and Employee agrees to accept such employment
under the following terms and conditions:
1. Term of Employment.
(a) Except for earlier termination as is provided in Section 12 below,
employment under this Agreement and the term of this Agreement shall commence on
August 10, 1998, with a 90-day trial period (Initial Term), during which time
either party may cancel this agreement. The Company will pay 30 days of
severance if this Agreement is canceled by the Company during the Initial Term.
(b) After the Initial Term, this Agreement and employment hereunder
shall be renewed automatically for successive terms of one (1) year each (a
"Renewal Term"), unless prior to the end of each anniversary, any Renewal Term
either party shall have given to the other party at least three months' prior
written notice (a "Termination Notice") of termination of this Agreement or
Employee shall have exercised his right of termination upon a Change in Control
(to the extent applicable) provided for in subsection (a) above. If a
Termination Notice is given by either party, (i) the Company shall, without any
liability to Employee except as set forth herein, have the right, exercisable at
any time after the Termination Notice is given, to elect any other person to the
office or offices in which Employee is then serving and to remove Employee from
such office or offices, but (ii) all other obligations Employee and the Company
have to the other, including the Company's obligation to pay compensation and
make available the fringe benefits to which Employee is entitled hereunder,
shall continue until the end of the anniversary date.
2. Compensation
(a) Employee shall be compensated for performance of obligations under
this Agreement at the rate of Eighty Thousand Dollars, ($80,000.00) for the
Initial Term, after which time it will increase to Eighty-Five Thousand Dollars,
($85,000.00) per annum and then adjusted to $90,000 after one year of
employment.
(b) Upon ratification of the Company's incentive Stock Option Plan by
its shareholders, Employee shall be granted an employment options pursuant to
the Plan, paid out as follows: The initial grant shall be for Twenty-Five
Thousand (25,000) of the Company's Common Shares, @ $ 0.01 par value, effective
August 10, 1998. Following 90 days of employment, another Seventy-Five Thousand
(75,000) Common Shares will be issued to employee. The exercise price shall be
established for all recipients by the Company's Board of Directors.
3. Duties.
(a) During the term of employment hereunder, including any Renewal Term
hereof, Employee shall serve, and the Company shall employ Employee, as the
Chief Financial Officer, with such duties, title and responsibilities of a
similar or greater nature and stature as established standards in the industry.
Employee also shall perform such other services and duties consistent with the
office or offices in which Employee is serving and its responsibilities as from
time to time shall be prescribed by the Board of Directors, and Employee also
shall serve, if elected, as an officer and/or director of any of the Company's
subsidiaries, in all cases in conformity to the bylaws and the policies of the
Board of Directors of each such corporation.
(b) Employee shall be required to devote substantially all his business
time and energies during normal business hours to the business and affairs of
the Company and its subsidiaries.
(c) Employee shall cooperate with the Company, including taking such
medical examination as the Company reasonably shall deem necessary, if the
Company shall desire or be required (such as pursuant to the terms of any bank
loan or any agreement for merger, sale or purchase or any Company medical,
disability or life insurance plan) to certify in writing the current state of
Employee's physical health. Where reasonably possible, the Company shall
cooperate with Employee's request to have such examinations performed by his
personal physician or another physician reasonably acceptable to Employee.
(d) Employee shall be subject to the Company's rules, practices and
policies applicable to the Company's senior executive employees, except to the
extent the same are inconsistent with any of the express provisions of this
Agreement. (e) Employee shall not be required to relocate outside the Orlando,
Florida area in order to perform his duties under this Agreement but shall
undertake such reasonable business travel as may be necessary to perform said
duties (for which Employee shall be reimbursed pursuant to Section 7 below).
4 . Benefits.
(a) During the term of this Agreement and any subsequent renewal
periods, Company shall provide and pay for Employee's full family coverage of
medical and dental insurance. Employee shall have the benefit of and be entitled
to participate in such employee benefit plans and programs, including life and
disability insurance, pension, saving and other similar plans, as the company
now has or hereafter may establish from time to time, and in which Employee
would be entitled to participate pursuant to the terms thereof. The foregoing,
however, shall not be construed to require the Company to establish any such
plans or to prevent the Company from modifying or terminating any such plans,
except health insurance, and no such action or failure thereof shall affect this
agreement.
(b) Employee shall be entitled to three (3) weeks of paid vacation each
year.
(c) The Company shall indemnify Employee in the performance of his
duties pursuant to the By-Laws of the Company and to the full extent allowed by
applicable law, including, without limitation, legal fees.
5. Change of Control; Severance Pay.
(a) If Employee elects to terminate this agreement during the Initial
Term or any Renewal Term, as a result of a Change of Control of the Company,
then within ten business days after the date of such termination date (the
"Termination Date") the Company shall pay to Employee an amount in cash (the
"Termination Payment") equal to ninety (90) days total compensation, including
base salary and all benefits, perquisites and incentive or bonus payments.
(b) The Employee may elect to continue to be covered by all of the
company's life, medical, health, and dental plans for 24 months after such
Change of Control termination date at Employee's expense.
(c) The amounts paid to the Employee hereunder shall be considered
severance pay in consideration of the past services he has rendered to the
Company and in consideration of his continued service from the date hereof to
his entitlement to those payments. Should the Employee actually receive other
payments from any such other employment, the payments called for hereunder shall
not be reduced or offset by any such future earnings.
(d) The arrangements called for by this Agreement are not intended to
have any effect on the participation in any other benefits available to
executive personnel or to preclude other compensation or additional benefits as
may be authorized by the Company's Board of Directors from time to time.
6. Working and Other Facilities. During the Initial Term and any Renewal Term,
Employee shall be provided with such working facilities and other support
services as are suitable to his position and necessary and appropriate for the
performance of his duties.
7. Expenses. The Company shall reimburse Employee for all reasonable
expenses incurred in connection with the performance of Employee's obligations
hereunder, upon the presentation of appropriate substantiation of such expenses
and approval thereof by the Compensation Committee in accordance with normal
Company expense reimbursement policies, and shall provide Employee with a
cellular phone at no cost to Employee.
8. Confidentiality, Noninterference and Proprietary Information.
(a) In the course of employment by the Company hereunder, Employee will
have access to confidential or proprietary data or information of the Company.
Employee shall not at any time divulge or communicate to any person, nor direct
any Company employee to divulge or communicate to any person (other than to a
person bound by confidentiality obligations similar to those contained herein
and other than as necessary in performing duties hereunder) or use to the
detriment of the Company or for the benefit of any other person, any of such
confidential or proprietary data or information, except to the extent the same
becomes publicly known other than through a breach of this Agreement by
Employee. The provisions of this Section 9(a) shall survive employment
hereunder, whether by the normal expiration thereof, or otherwise, for as long
as such data or information remains confidential. The term "confidential or
proprietary data or information" as used in this agreement shall mean data or
information not generally available to the public, including personnel
information, financial information, customer lists, supplier lists, product and
trading specifications, trade secrets, information concerning product and
service composition, specifications and formulas, tools and dies, drawing and
schematics, manufacturing processes, information regarding operations, systems
and services, know how, computer and any other processed or collated data,
computer programs, pricing, marketing, sales and advertising data and regulatory
compliance information.
(b) Employee shall not, during the term of this Agreement and for a
period of one year after the termination of employment by the Company, for
Employee's own account or for the account of any other person, interfere with
the Company's, or its subsidiaries relationship with any of its suppliers or
customers or interfere with or hire any of the Company's or its subsidiaries'
employees.
(c) All written materials, records and documents made by Employee or
coming into his possession during his employment concerning any products or
services, processes or equipment, manufactured, used, developed, investigated or
considered by the Company or otherwise concerning the business or affairs of the
Company, shall be the sole property of the Company, and upon termination of
employment, or upon the reasonable request of the Company during employment,
Employee shall promptly deliver the same to the Company. In addition, upon
termination of employment, or upon the reasonable request of the Company during
employment, Employee shall deliver to the Company all other Company property in
his possession or under his control, including confidential or proprietary data
or information and all Company credit cards and all equipment and automobiles
owned or leased by the Company.
9. Equitable Relief. With respect to the covenants contained in Sections
8 of this Agreement, Employee acknowledges that any remedy at law for any breach
of said covenants may be inadequate and that the Company shall be entitled to
specific performance or any other mode of injunctive or other equitable relief
to enforce its rights thereunder.
10. Earlier Termination: Continued Compensation. Employment hereunder shall
terminate prior to the stated expiration date of the Initial Term or, if
applicable, the current Renewal Term (the "Stated Expiration Date") on the
following terms and conditions:
(a) This Agreement shall terminate automatically on the date of
Employee's death. Notwithstanding the foregoing, the Company shall: (i) continue
to make payments to Employee's estate of the Base Salary as then in effect
pursuant to this Agreement for six (6) months.
(b) This Agreement shall be terminated, at the option of the Company,
if Employee is unable to perform his duties hereunder for 90 days (whether or
not continuous) during any period of 365 consecutive days by reason of physical
or mental disability. The disability shall be deemed to have occurred on the
90th day of inability to perform duties due to disability, and notice of
termination on account of such disability shall be given (if at all) by the
Company within 30 days after that date. Notwithstanding the foregoing, the
Company shall: (i) continue to pay Employee's Base Salary as then in effect
pursuant to this Agreement (less any amounts paid to Employee pursuant to any
disability policy provided by the Company), until six (6) months after such
disability, and pay Employee any reimbursable expenses that had been incurred by
him and had not been reimbursed as provided herein as of the date of termination
due to such disability. Disability as used in this paragraph shall mean any
single or series of related physical or mental conditions, illnesses or diseases
which, in the opinion of a competent and mutually selected medical specialist in
the locale of Employee's residence, independent of Employee and the Company,
prevents Employee (as the date of that specialist's examination, which shall not
take place until the condition, illness or disease in question shall have
continued for at least 90 days) from substantially fulfilling Employee's duties
for the Company. No termination for disability shall be effective unless (i)
Employee has first received notice in writing of the Company's determination to
have him medically examined and such examination has taken place or (ii)
Employee has unreasonably delayed, or interfered or refused to cooperate with,
the examination process.
(c) This Agreement shall terminate immediately upon the Company's
sending Employee written notice terminating employment hereunder for cause.
"Cause" shall mean: (i) conviction of Employee of a felony; (ii) Employee's
material breach of any obligations under this Agreement (including voluntary
termination by Employee of this Agreement other than at the end of the Initial
Term or any Renewal Term or by exercise of Employee's right of termination
provided for in Section l(a) hereof) without a material breach by the Company of
its obligations hereunder); or (iii) Employee's refusal to perform duties,
obligations and responsibilities under this Agreement, or (iv) Employee's gross
negligence or willful misconduct with respect to duties or gross misfeasance or
gross malfeasance of office.
(d) This Agreement may not be terminated by the Company except as set
forth in paragraphs 11(a), (b) and (c) hereof.
(e) Upon termination of this Agreement, the Company's obligations
hereunder shall cease except as provided in subsections (a) and (b) above and
Section 5 hereof.
11. Entire Agreement: Modification: Construction. The Agreement constitutes
the full and complete understanding of the parties, and supersedes all prior
agreements and understandings, oral or written, between the parties, with
respect to the subject matter hereof. Employee acknowledges that he has (a)
carefully read this Agreement, (b) had an opportunity to consult with
independent counsel with respect to this Agreement and (c) entered into this
Agreement of his own free will. Employee represents and warrants that he is not
a party to, or otherwise bound by, any employment contracts, restrictive
covenants or any other contracts preventing the proper performance of duties
hereunder. Each party to this Agreement acknowledges that no representations,
inducements, promises or agreements, oral or otherwise, have been made by either
party, or anyone acting on behalf of either party, which are not embodied or
referred to herein and that no other agreement, statement or promise pertaining
to the terms of employment by the Company and not contained specifically or
referred to in this Agreement shall be valid or binding. This Agreement may not
be modified or amended except by an instrument in writing signed by the party
against which enforcement thereof may be sought.
12. Severability. Any term or provision of this Agreement that is held to
be invalid or unenforceable in any jurisdiction shall, as to that jurisdiction,
be ineffective to the extent of that invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction.
13. Waiver of Breach. The waiver by either party of a breach of any
provision of this Agreement, which waiver must be in writing to be effective,
shall not operate as or be construed as a waiver of any subsequent breach.
14. Notices. All notices hereunder shall be in writing and shall be sent
by messenger or by certified or registered mail, postage prepaid, return receipt
request, if to Employee, to his residence at, and if to the Company, to 000
Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000.
15. Assignability; Binding Effect. This Agreement shall not be assignable
by Employee. This Agreement shall be binding upon and inure to the benefit of
Employee, his legal representatives, heirs and distributees, and shall be
binding upon and inure to the benefit of the Company, its successors and
assigns.
16. Governing Law. All questions pertaining to the validity, construction,
execution and performance of this Agreement shall be construed and governed in
accordance with the laws of the State of Florida without giving effect to the
conflicts or choice of law provisions thereof.
17. Arbitration. Any disputes which arise under this Agreement shall be
settled by arbitration at Orlando, Florida or a mutually acceptable location
pursuant to the rules of the American Arbitration Association.
18. Headings. The headings in this agreement are intended solely for
convenience of reference and shall be given no effect in the construction or
interpretation of this agreement.
19. Counterparts. This agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
Executed by the Parties hereto effective as of ___ day of ______________, 199_.
COMPANY: GOLF VENTURES, INC.
EIN:
By: Employee: Xxxxx Xxxxxxx
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Xxxxxx Xxxxxxxxx
President
Date: Signature
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Date:
SSN: - -
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