EX 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 10th day of December, 2002, at
Rome Georgia, between Xxxxx Sports Turf, a Delaware corporation
("Corporation" or "Company" or "Employer"), and Xxxxxx Xxxxx, ("Employee").
In consideration of the mutual covenants, agreements and
provisions contained in this Agreement, the parties agree as follows:
EMPLOYMENT
1.0 EMPLOYMENT. Employer employs Employee as President, and
Employee accepts employment, upon the terms and conditions set forth herein.
2.0 TERM. This Agreement shall commence effective as of
December 10th 2002, and shall continue in effect for a period of
three (3) years (the "Employment Period"); unless terminated earlier,
by Company or Employee, upon prior written notice. Further, if a
change of control (as defined herein) of the Company shall have
occurred during the Employment Period, this Agreement shall continue
in effect for a period of twelve (12) months beyond the month in
which such change of control occurred.
3.0 CHANGE OF CONTROL. The term "Change of Control of the
Company" shall mean a change in control of a nature that would be
required to be reported in response to Item 5(f) of Schedule 14A of
Regulation 14A promulgated under the Securities Exchange Act of 1934
as in effect on the date of this Agreement or, if Item 5(f) is no
longer in effect, any regulations issued by the Securities and
Exchange Commission pursuant to the Securities and Exchange Act of
1934 which serve similar purposes; provided that, without limitation,
such change in control shall be deemed to have occurred if and when
(a) any "person" (as such term is used in Sections 13(d) and 14(d)(2)
of the Securities Exchange Act of 1934) is or becomes a beneficial
owner, directly or indirectly, of securities of the company
representing 25% or more of the combined voting power of the
company's then outstanding securities or (b) individuals who were
members of the Board of Directors of the Company immediately prior to
a meeting of the shareholders of the Company involving a contest for
the election of directors shall not constitute a majority of the
Board of Directors following such election.
4.0 COMPENSATION. For all services to be rendered by the
Employee pursuant to his duties set forth in this Agreement, the
Employee shall be paid as compensation;
4.1. Base Salary and Considerations. A fixed salary in the
amount of $160,000 per year, payable in equal installments according
to the Company's regular payroll schedule. The Corporation's Board
of Directors or Compensation and Benefits Committee of the Board
shall review this salary from time to time during the term of this
Agreement.
4.2. Stock Issuances. Executive shall be issued:
4.2.1. 1,600,000 shares of the Common Stock of the Company
pursuant to the terms of the Employee Stock Purchase Plan (ESSP) to
be adopted by the Company and registered under Form S-8. These shares
shall vest in equal installments, 400,000 shares quarterly over a one
year Term; and,
4.2.2 2,000,000 unregistered shares of the Common Stock of the
Company. Company undertakes no obligation to register these shares.
Issuance of the shares shall be in accordance with all applicable
securities laws and any and all other terms and conditions of the
Company's ESSP to be adopted by the Company.
4.3 Employee Benefit Plans. The Employee, his dependents
and beneficiaries, shall be entitled to participate in any pension,
profit sharing, medical reimbursement, insurance or other employee
payment or benefit plan of the Employer as may be in effect from time
to time, subject to the participation standards and other terms
thereof, to the same extent as other officers under the benefit
practices of the Company.
Pension and Profit Sharing Plans. Executive shall be entitled to a
percentage equal to 2% percent of the Company's net profits.
Further, Executive shall be entitled to participate in any pension or
profit sharing plan or other type of plan adopted by Company for the
benefit of its officers and/or regular employees.
4.4 Cumulative Compensation. The compensation provided
for in paragraphs 4.1, 4.2 and 4.3 above, together with the
perquisites set forth in section 6.0 below, are in addition to the
benefits provided for upon termination pursuant to Section 12.0 below.
4.5 Indemnification. The Corporation hereby agrees to
indemnify, and keep indemnified in accordance with, and to the
fullest extent authorized by, the Laws of the State of Colorado as it
may be in effect from time to time, the Employee, from and against
any expenses (including attorney's fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by the
Employee in connection with any threatened, pending or completed
action, suit or proceeding, whether or not such action is by or in
the right of the Corporation or such other enterprise with respect to
which the Employee serves or has served as a director, officer or
employee, by reason of the fact that the Employee is or was a
director, officer or employee , of the Corporation, or is or was
serving at the request of the Corporation as a director, officer or
employee of another corporation, partnership, joint venture, trust or
other enterprise. The indemnification rights granted to the Employee
under this Agreement shall not be deemed exclusive of, or in
limitation of, any rights to which Employee may be entitled under the
law of its state of incorporation, the Corporation's Certification of
Incorporation of By-Laws, any other agreement, vote of stockholders
or directors or otherwise.
5.0 EXPENSES. During the term hereof, the Corporation
will reimburse the Employee for any reasonable out-of-pocket expenses
incurred by the Employee in performance of service for the
Corporation under this Agreement (e.g., transportation, lodging and
food expenses incurred while traveling on Corporation business) and
any other expenses incurred by the Employee in furtherance of the
Corporation's business; provided, however, that the Employee renders
to the Corporation a complete and accurate accounting of all such expenses.
6.0 PERQUISITES. During the period of employment,
Employee shall be entitled to perquisites, including, without
limitation, an appropriate office, and fringe benefits accorded
executives of equal rank.
7.0 MINIMUM COMPENSATION. Nothing in this Agreement shall
preclude the Company from amending or terminating any employee
benefit plan or practice or the provision of certain perquisites;
provided, however, that it is the intent of the parties that the
Employee shall continue to be entitled, during the period of
employment, to compensation, benefits and perquisites as set forth
above at least equal to those attached to his position on the date of
this Agreement. Nothing in this Agreement shall operate or be
construed to reduce, or authorize a reduction, without the Employee's
written consent, in the level of such compensation, benefits and
perquisites.
8.0 VACATIONS. The Employee shall be entitled to a
vacation with full compensation equal to three weeks each year;
provided, however, that the Employee's vacation will be scheduled at
such time as will least interfere with the business of the Employer.
Attendance at a business seminar is not to be deemed a vacation;
provided, whoever, that attendance at such meetings or seminars shall
be planned so as to least interfere with the business of the Employer.
9.0 EMPLOYMENT. The Company hereby agrees to continue the
Executive in its employ, and the Executive hereby agrees to remain in
the employ of the Company, for the Employment Period as specified in
Section 2.0, to exercise such authority and perform such duties as
are commensurate with the authority being exercised and duties being
performed by the Executive immediately prior to the effective date of
this Agreement, which services shall be performed at the location
where the Executive was employed immediately prior to the Effective
Date of this Agreement or at such other location as the Company may
reasonably require; provided that the Executive shall not be required
to accept a location which is unreasonable in the light of the
Executive's personal circumstances. The Executive agrees that during
the Employment Period he shall devote his business time to his
executive duties as described herein and perform such duties
faithfully and efficiently.
10.0 PERFORMANCE. It is contemplated that during the
period of employment the Employee shall serve as an executive of the
Company with the office and title of President reporting directly to
the Chief Executive Officer during the period of employment, the
Employee shall hold a position of responsibility and importance and a
position of scope, with the functions, duties and responsibilities
attached thereto, at least equal to in responsibility and importance
and in scope to and commensurate with his position described in
general terms in this Section 10.0.
11.0 TERMINATION.
11.1 During the period of employment, Employee may
terminate this Agreement without cause or for cause. For the
purposes of this Section 11.1, the term "cause" shall include the
occurrence of any of the following:
11.1.1 the breach or violation by the Company of
any of the terms of this Agreement;
11.1.2 Any significant change in position, duties and responsibilities
of the Employee to which the Employee does not consent;
11.1.3. In the event of a change in control as
defined in Section 2.0 hereof, any change in the circumstances of employment
which the Employee determines, in good faith, results in his being
unable to carry out the duties and responsibilities attached to the position
and contemplated by the definition of that position set forth in this
Agreement.
11.2. In the event of an occurrence described in
subsection 11.1.1, 11.1.2, or 11.1.3 above, the Employee shall serve
written notice of such event upon the Company, setting forth in
detail the circumstances, which the Employee has determined
constitutes "cause" within any of those definitions. In the event
the Company should remedy or otherwise cure the facts constituting
the cause relied upon by the Employee within thirty (30) days after
such written notice, such fact or circumstance shall not be deemed to
constitute "cause" for which employment can be terminated within the
meaning of Section 11.1 above.
11.3. During the period of employment, the
Corporation may terminate this Agreement for cause and upon 30 days
written notice and opportunity to cure being given to Employee. For
the purpose of this Section 11.3, the term "cause" shall include the
occurrence of any of the following:
11.3.1. Employee breaches or violates any of the
terms of this Agreement;
11.3.2. Employee is convicted of any felony or
is shown to have engaged in any act of
dishonesty or fraud upon the Corporation, any
of its affiliated companies, or any of its customers or clients;
11.3.3. Employee has been grossly negligent in
the performance of his employment duties or responsibilities.
11.4. During the period of employment, the
Corporation may not terminate this Agreement without cause.
11.5. This Agreement shall also terminate upon the
insolvency, bankruptcy, dissolution, or liquidation of the
Corporation or cessation of business by the Corporation for at least
thirty (30) consecutive days.
12.0 TERMINATION PAYMENTS. In the event of a Termination
and subject to the provisions of Sections 11.1.1., 11.1.2., 11.1.3.
or 11.4 of this Agreement, the Company shall pay to the Executive and
provide him with the following:
12.1. The Company shall continue to pay the Executive
his salary on a monthly basis at the same rate as an amount equal to
payment at Executive's base salary rate for the remaining period of
Term, plus an amount equal to one hundred percent (100%) of
Executive's base salary. Any shares not yet vested in Employee shall
vest immediately.
12.2. During the remainder of the Employment or
payment Period, the Executive shall continue to be treated as an
employee under the provisions of any incentive compensation described
in Section 4.2. In addition, the Executive shall continue to be
entitled to all benefits and service credit for benefits under
medical, insurance, split-dollar life insurance and other employee
benefit plans, programs and arrangements of the Company described or
referred to in Section 4.3 as if he were still employed during such
period under this Agreement.
12.3. If, despite the provisions of paragraph 12.2
above, benefits or the right to accrue further benefits under any
stock option or other incentive compensation arrangement described in
Section 4.2 shall not be provided under any such arrangement to the
Executive or his dependents, beneficiaries or estate because he is no
longer an employee of the Company, the Company shall, to the extent
necessary, pay or provide for payment of such benefits to the
Executive or his dependents, beneficiaries or estate.
13.0 DISABILITY.
13.1. If the Employee is unable to perform the
Employee's services by reason of illness or incapacity, the
Employee's regular compensation shall be continued for a period of
four (4) weeks following the week in which such illness or incapacity
commences, at the end of which time no further compensation shall be
due and payable to the Employee until the Employee shall return and
resume the Employee's duties. In the event the Employee is eligible
to receive payments on account of the fringe benefit program covering
disability provided by the Corporation, then the Employee's base
salary, as defined as above, will be reduced to the extent of such
entitlement and receipt.
13.2. If, because of illness, physical or mental
disability or other incapacity, Employee shall fail, for a period of
120 work days during the term hereof, to render the services provided
for by this Agreement, or if Employee contracts an illness or injury
which will permanently prevent performance by him of the services and
duties provided for by this Agreement by notice to the Employee
effective 30 days after the giving of such notice, after which no
additional compensation shall be due.
14.0 DEATH. In the event of the death of Employee during
the term of this Agreement, his employment hereunder shall terminate
on the date of his death. In the accounting between the Employer and
the Employee's personal representative, Employee's estate shall be
due compensation under this Agreement equal to one year of Employee's
salary. Further the total amount of shares to be issued to Employee
pursuant to 4.2.1, 3,600,000 shares, shall vest immediately, if not
yet vested in Employee prior to his death.
15.0 COMPETITION.
15.1. Employee covenants to and with the Employer,
its successors and assigns, that during the term of this Agreement
and for a period of twelve (12) months from the date of the
termination of this Agreement for any reason, he will not directly or
indirectly, enter into any agreement or arrangement with any other
person, firm, corporation or entity to conduct any research or
development, nor shall Employee directly or indirectly conduct such
research or development on his own behalf, related to the discovery
of processes, inventions, improvement, development or
commercialization of any new device, apparatus or product competitive
with a product developed, produced or reduced to practice solely by
the Corporation, unless Employee shall have first obtained the
Corporation's expressed written consent thereto.
15.2. In the event of a breach or threatened breach
by Employee of any provisions of this Section 15.0 the Corporation
shall be entitled to an injunction restraining it from the commission
of such breach. Nothing herein contained shall be construed as
prohibiting the Corporation from pursuing any other remedies
available to it for such breach or threatened breach, including the
recovery of money damages. The covenants contained in this Section
15.0 shall be construed as independent of any other provisions in
this Agreement; and the existence of any claim or cause of action of
Employee against the Corporation, whether predicated on this
Agreement or otherwise, shall not constitute a defense to the
enforcement by the Corporation of said covenants.
15.3. The covenants contained in this Section 15.0
shall terminate and, upon termination, shall be unenforceable and of
no further legal force and effect, in the event the Corporation, or
any successor to the Corporation, becomes insolvent, is liquidated or
ceases for any reason to conduct business operations for a continuous
period of at least thirty (30) days.
15.4. The Corporation shall have the right to assign
the aforesaid covenants; and Employee agrees to remain bound by the
terms of the covenants to any and all subsequent purchaser and
assignees of the assets and business of the Corporation.
16.0 NON-INTERFERENCE WITH EMPLOYEES.
16.1. Employee covenants with the Corporation that
employees of or consultants to the Corporation and employees of and
consultants to firms, corporations or entities affiliated with the
Corporation have, of necessity, been exposed to and have acquired
certain knowledge, understandings, and know-how concerning the
Corporation's business operations which is confidential information
and proprietary to the Corporation.
16.2. In order to protect the Corporation's
confidential information and to promote and insure the continuity of
the Corporation's contractual relations with its employees and
consultants, Employee covenants and agrees that for so long as
Employee holds any position or affiliation with the Corporation,
including service to the Corporation as an officer, director,
employee, consultant, agent or contractor, and for a period of twelve
(12) months from the date Employee ceases to hold any such position
or status with the Corporation or otherwise becomes disaffiliated
with the Corporation, he will not directly or indirectly, or permit
or encourage other to directly or indirectly (i) interfere in any
manner whatsoever with the Corporation's contractual or other
relations with any or all of its employees or consultants, or (ii)
induce or attempt to induce any employee or consultant to the
Corporation to cease performing services for or on behalf of the
Corporation, or (iii) solicit, offer to retain, or retain, or in any
other manner engage or employ the services of, any person or entity
who or which is retained or engaged by the Corporation, or any firm,
corporation or entity affiliated with the Corporation, as an
employee, consultant or agent.
16.3. In the Event any court of competent
jurisdiction determines or holds that all or any portion of the
covenants contained in this Section 16.0 are unlawful, invalid, or
unenforceable for any reasons, then the parties hereto agree to
modify the provisions of this Section 16.0 if and only to the extent
necessary to render the covenants herein contained enforceable and
otherwise in conformance with all legal requirements.
17.0 CLIENTS AND CUSTOMERS.
17.1. Employee covenants with the Corporation that
the clients and customers of the Corporation, both actual and
contemplated, constitute actual and prospective business
relationships, which are proprietary to the Corporation and comprise,
in part, the Corporation's confidential information and trade secrets.
17.2. In order to protect the Corporation's
proprietary rights and to promote and ensure the continuity of the
Corporation's contractual relations with its customers and clients,
Employee covenants and agrees that, notwithstanding the provisions of
Section 15.1 hereof, and for so long as Employee holds any position
or affiliation with the Corporation, including service to the
Corporation as an officer, director, employee, consultant, agent or
contractor, and for a period of twelve (12) months from the date
Employee ceases to hold any such position or status with the
Corporation or otherwise becomes disaffiliated with the Corporation,
he will not directly or indirectly, or permit or encourage others to
directly or indirectly (i) interfere in any manner whatsoever with
the Corporation's contractual relations with any clients or
customers, or (ii) induce or attempt to induce any client or customer
of the Corporation to cease doing business with the Corporation.
17.3. In the event any court of competent
jurisdiction determines or holds that all or any portions of the
covenants contained in this Section 17.0 are unlawful, invalid or
unenforceable for any reason, then the parties hereto agree to modify
the provisions of this Section 17.0 if and only to the extent
necessary to render the covenants herein contained enforceable and
otherwise in conformance with all legal requirements.
18.0 COVENANT TO RETAIN CONFIDENCES.
18.1. Employee understands that all information
learned, known, made, devised or developed concerning any of the
Company's products and activities, including, without limitation, any
inventions, discoveries, improvements, processes, formulas, computer
programs (including their structure, sequence, organization,
coherence, look and feel), apparatus, equipment, customer and client
lists, marketing plans, mailing lists, art, graphics, display,
research, and the like used by the Corporation in connection with its
business constitutes the confidential information, proprietary
information and trade secrets of the Corporation. Employee covenants
and agrees that he will not (except as required in the course of his
position with the Corporation), during the term hereof or thereafter
for a period of twelve (12) months, communicate or divulge to, or use
for the benefit of himself or any other person, firm, association, or
corporation, without the consent of the Corporation, any confidential
information or trade secrets possessed, owned, or used by the
Corporation or its affiliates that may be communicated to, acquired
by, or learned of by the Employee in the course of or as a result of
his services with the Corporation. For the purposes of this Section
18.1, confidential information of the Corporation shall not include
(i) any information developed by the Employee independently of
services performed by the Employee for the Corporation pursuant to
this Agreement; (ii) any information rightfully obtained by the
Employee from a third party without restriction; (iii) any
information publicly available other than through the fault or
negligence of the Employee; (iv) any information disclosed by the
corporation to third parties without restriction; or (v) information
already known by the Employee prior to its disclosure by the Corporation.
18.2. Employee will not use in the course of
Employee's employment with the Corporation, or disclose or otherwise
make available to the Corporation, any information, documents or
other items which Employee may have received from any other person or
entity (including any prior employer), and which Employee is
prohibited from so using, disclosing or making available.
18.3. All records, files, memoranda, reports, price
lists, customer lists, drawings, plans, sketches, documents,
prototypes, testing data, equipment, electronically stored
information on disk, tape or any other medium or existing in computer
memory transmitted by any means, including, but not limited to,
telephone or electronic data transmission and the like, relating to
the business of the Corporation or its affiliates, which Employee
shall use or prepare or come into contact with, shall remain the sole
property of the Corporation.
19.0 WORK PRODUCT.
19.1. All trade secrets, know-how, confidential
information, copyrightable material, inventions, discoveries, and
improvements, including computer programs (their structure, sequence,
organization, coherence, look and feel), whether patentable or
unpatentable, copyrightable or uncopyrightable, made, devised,
discovered or reduced to practice by the Employee, whether by himself
or jointly with others, from the time of becoming an employee of the
Corporation until the termination of that status, shall be deemed
work for hire and shall be promptly disclosed in writing to the
Corporation and are to redound to the benefit of the Corporation and
become and remain its sole and exclusive property.
19.2. By executing this Agreement, Employee hereby
transfers and assigns to the Corporation, or person, firms or
corporations designated by the Corporation, any or all of Employee's
rights, title and interest in and to any and all developments,
inventions, computer programs, discoveries, improvements, processes,
devices, copyrights, patents and patent applications therefore, and
to execute at any and all times any and all instruments and do any
and all acts necessary or which the Corporation may deem desirable in
connection with conveying, transferring and assigning Employee's
entire right, title and interest in and to any inventions,
discoveries, improvements, computer programs, processes devices,
copyrights, patent applications therefore or patents thereon in any
way related to the technology or trade secrets developed, discovered
or reduced to practice by Employee during the term of this Agreement,
it being the express understanding and agreement of the parties that
any and all future developments, inventions, and discoveries of
Employee during the term hereof shall be the property of the
Corporation, or its assigns.
20.0 PATENTS AND COPYRIGHTS.
20.1. Employer shall cause to be filed United States
and foreign patent and/or copyright applications on each invention
deemed to be patentable or copyrightable and embodied in any
technology developed and reduced to practice during the term hereof
which inure to the Corporation by virtue of the provisions of Section
19.0 hereof.
20.2. The Corporation shall forfeit patent rights or
copyrights to any patentable or copyrightable technology developed by
Employee during the term hereof in any jurisdiction in which it fails
to file patent or copyright applications after a timely request by
Employee. Employer shall provide to Employee a copy of each
application filed, and within six (6) months thereafter Employee
shall designated what, if any, foreign countries he desires
applications to be filed. Patent or copyright prosecution and
maintenance shall be done by an attorney to be selected by the
Corporation and approved by Employee, which approval shall not be
unreasonably withheld. All reasonable expense of filing, prosecution
and maintenance of domestic and foreign patents or copyrights and
patent or copyright applications shall be borne by Employer.
20.3. Employer and Employee agree to forebear from,
and not permit others to make or permit any public disclosure of any
of the patentable matter prior to the application for a United States
patent. All foreign patent applications shall be made no later than
one (1) year following the date of the U.S. patent application.
20.4. All new patents shall be applied for in the
name of Employee, as inventor, and shall be licensed to the
Corporation or its assigns. All copyrights shall be registered in
the name of the Corporation. The Employee shall, upon demand,
execute and deliver to the Corporation or its assigns such documents
or assignments as may be deemed necessary or advisable by counsel for
the Corporation or its assigns for filing in the appropriate patent
offices to evidence the assignment of the patent rights hereby granted.
21.0 REPRESENTATIONS OF EMPLOYEE. The Employee represents
that, to the best of his knowledge and belief, neither his
affiliation with the Corporation, nor his holding any position as
officer, director, Employee, or consultant with the Corporation, nor
his ownership of common stock in the Corporation, nor his performing
any other services for the Corporation violates any presently
existing, valid and enforceable contract, agreement, commitment or
other legal relationship between Employee and any other person or entity.
22.0 ATTORNEYS' FEES. In the event there is any litigation
or arbitration between the parties concerning this Agreement, the
successful party shall be awarded reasonable attorneys' fees and
litigation or arbitration costs, including the attorneys' fees and
costs incurred in the collection of any judgment.
23.0 NOTICES. All notices required or permitted hereunder
shall be sufficient if delivered personally or mailed to the parties
at the address set forth below or at such other address as either
party may designate in writing from time to time. Any notice by
mailing shall be effective 48 hours after it has been deposited in
the United States certified mail, return receipt requested, duly
addressed and with postage prepaid.
24.0 PARTIAL INVALIDITY. If any provisions of this
Agreement are in violation of any statute or rule of law of any state
or district in which it may be sought to be enforced, then such
provisions shall be deemed null and void only to the extent that they
may be in violation thereof, but without invalidating the remaining
provisions.
25.0 BINDING EFFECT. This Agreement shall be binding upon
and inure to the benefit of the respective parties hereto, their
heirs, personal representatives, successors and assigns; provided,
however, that Employee may not assign his employment hereunder, and
any assignment by Employee in violation of this Agreement shall vest
no rights in the purported assignee.
26.0 WAIVER. No waiver of any breach of any one of the
agreements, terms, conditions or covenants of this Agreement by the
Employer or the Employee shall be deemed to imply or constitute a
waiver of any other agreement, term, condition or covenant of this
Agreement. The failure of either party to insist on strict
performance of any agreement, term, condition or covenant, herein set
forth, shall not constitute or be construed as a waiver of the rights
of either or the other thereafter to enforce any other default of
such agreement, term, condition or covenant; neither shall such
failure to insist upon strict performance be deemed sufficient
grounds to enable either party hereto to forego or subvert or
otherwise disregard any other agreement, term, condition or covenants
of this Agreement.
27.0 GOVERNING LAW. This Agreement and the rights and
duties of the parties shall be construed and enforced in accordance
with the laws of the State of Delaware.
28.0 ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement of the parties hereto with respect to the subject
matter thereof. There are no representations, warranties, conditions
or obligations except as herein specifically provided. Any amendment
or modification hereof must be in writing.
IN WITNESS WHEREOF, the parties to this Agreement have duly
executed it on the day and year first above written.
EMPLOYER:
Xxxx Xxxxxxxx Director/Secretary
Xxxxxxx Xxxxxxx Director
EMPLOYEE:
Xxxxxx Xxxxx and President/CEO
