EXHIBIT 10.21
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into and becomes
effective as of August 15, 2000, by and between Carbite Golf, Inc., a British
Columbia corporation, and Carbite, Inc., a California corporation which is a
wholly-owned subsidiary of Carbite Golf, Inc., (collectively "Employer") and
Xxxxxx X. Xxxxxxxxx ("Employee").
IN CONSIDERATION of their respective promises and covenants contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows.
1. Employment. Employer hereby engages Employee to serve as its Executive
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Vice President and Chief Operating Officer, and Employee hereby accepts such an
engagement upon the terms and conditions set forth herein.
2. Term. The initial term of this Agreement shall begin on August 15,
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2000 and continue until December 31, 2001, unless this Agreement is terminated
earlier pursuant to Paragraph 10. This Agreement shall renew automatically for
one-year periods commencing January 1, 2002 unless either party provides the
other party with a notice of nonrenewal no less than thirty (30) days before the
end of the initial term or any renewal term.
3. Duties. Employee shall perform such duties and have such
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responsibilities as are set forth in Employer's Bylaws and as directed by
Employer's President and Board of Directors. Employee shall perform his duties
primarily in San Diego County, California.
4. Confidentiality. Other than in furtherance of the business of the
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Company, Employee shall not disclose any proprietary or confidential information
of Employer to any third party. For purposes of this Agreement, "proprietary
information" shall include, but not be limited to information regarding trade
secrets (including customer lists), patent applications, vendors, suppliers, and
research and development projects of Employer.
5. Nonsolicitation Covenant. Employee agrees that, during his employment
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with Employer, and for so long as he is receiving payments under Paragraph 12 of
this Agreement after the termination of his employment, he will not, directly or
indirectly, solicit or otherwise attempt to induce any employee to leave the
employ of Employer.
6. Authority. Employee shall not have the authority, without the approval
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of the Board of Directors, to obligate the Company to any transaction outside
the ordinary course of its business or to enter into any material transaction on
behalf of the Company.
7. Personnel Policies and Procedures. Employee shall comply with the
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policies and procedures of Employer. To the extent any provision in Employer's
personnel policies and procedures differs from the terms of this Agreement, the
terms of this Agreement shall apply.
8. Compensation. Employee's base pay shall be a minimum of $90,000 per
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year for the period August 15, 2000 through February 15, 2001 and a minimum of
$110,000 per year for the period February 15, 2001 through December 31, 2001 and
for any one year renewal term(s), plus such periodic and extraordinary
compensation deemed appropriate by Employer's Board of Directors.
9. Benefits.
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a. Vacation. Employee shall be entitled to four weeks paid vacation
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each year.
b. Other Benefits. Employee shall be entitled to participate in or
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receive any other benefits, including health and disability insurance, made
generally available by Employer to its employees.
10. Expenses. Employer shall reimburse Employee for reasonable and
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necessary expenses incurred by Employee in the ordinary course of business on
behalf of Employer.
11. Termination. This Agreement and the employment of Employee shall
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terminate, without notice or payment, under the following conditions:
a. The death of Employee;
b. The permanent disability of Employee (permanent disability shall
exist when Employee suffers from a condition of mind or body that indefinitely
prevents him from further performance of his duties); or
c. Employee engages in conduct constituting grounds for the
termination of employment as set forth in Section 2924 of the California Labor
Code.
12. Severance. If Employer issues a notice of non-renewal under Paragraph
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2, Employee or Employee's estate shall continue to receive compensation provided
for by this agreement for a period of three (3) months following the end of the
initial term or any renewal term. In the event of a termination of this
Agreement other than pursuant to Paragraph 11, Employer shall continue to pay
Employee the compensation provided for by this Agreement for the remainder of
the term hereof (determined as if the termination had not occurred) or for the
length of the severance period, whichever period is longer. A material change in
the duties and responsibilities of Employee, or a breach of this Agreement by
Employer which is unacceptable to Employee and results in his resignation shall
be deemed to be a termination of this Agreement by Employer.
13. Arbitration/Sole Remedy for Breach of Agreement. In the event of any
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dispute between Employer and Employee concerning any aspect of their employment
relationship, including any disputes upon termination, all such disputes shall
be resolved by binding arbitration before a single neutral arbitrator. The
arbitration shall be governed by the Commercial
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Arbitration Rules of the American Arbitration Association. The arbitrator may
apportion the costs of the arbitration, including arbitrator's fees, among the
parties, but shall have no power to award attorneys' fees. Each party shall be
responsible for its own attorneys' fees. In the event that any lawsuit is filed
concerning any such dispute concurrently with the arbitration of such dispute,
each of the parties hereto waives any right to provisional remedies such as
attachments, temporary restraining orders, and preliminary injunctions, to which
they otherwise might be entitled in such litigation.
14. Successors and Assigns. The rights and obligations of Employer under
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this Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of Employer. Employee shall not be entitled to assign any
of his rights or obligations under this Agreement.
15. Survival. The enforceability of Paragraphs 4, 5, 12, and 13 hereof
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shall survive the termination or expiration of this Agreement.
16. Governing Law. This Agreement shall be interpreted, construed,
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governed and enforced in accordance to the laws of the State of California.
17. Amendments. No amendment, modification, or waiver of the terms or
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conditions of this Agreement shall be valid unless in writing and signed by the
parties hereto.
18. Separate Terms. Each term, condition, covenant or provision of this
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Agreement shall be viewed as separate and distinct; and, in the event that any
such term, covenant or provision shall be held by a court of competent
jurisdiction to be invalid, the remaining provisions hereof shall continue in
full force and effect.
19. Waiver. A waiver by either party of a breach of any provision of this
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Agreement shall not constitute a general waiver or prejudice that party's right
otherwise to demand strict compliance with that provision or any other provision
in this Agreement.
20. Notices. Any notice required or permitted to be given under this
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Agreement shall be sufficient if it is in writing and sent by mail, or hand
delivered, to his residence, in the case of Employee, or to its principal office
in the case of the Employer.
21. Entire Agreement. This Agreement constitutes the entire Agreement
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between Employee and Employer concerning the subject matter hereof and
supersedes any previous oral or written communications, representations,
understandings or agreements concerning such subject matter between them.
Employee understands that no representative of the Employer has been authorized
to enter into any agreement or commitment with Employee which is inconsistent in
any way with the terms of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
set forth above.
CARBITE GOLF, INC.:
By: ___________________________
Name: _________________________
Title: __________________________
CARBITE, INC.:
By: ____________________________
Name: __________________________
Title: ___________________________
_________________________________
XXXXXX X. XXXXXXXXX
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