Exhibit 10.4
THE WORLD GOLF LEAGUE, INC.
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is made between The
World Golf League, Inc., a Delaware corporation and its affiliated companies
(collectively referred to as the "Company"), and Xxxxxxx X. Xxxxxxx
("Executive"). Unless otherwise indicated, all references to Sections are to
Sections in this Agreement. This Agreement is effective as of the "Effective
Date" set forth in Section 14 below.
W I T N E S S E T H:
WHEREAS, the Company desires to obtain the services of Executive, and
Executive desires to be employed by the Company upon the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises, the agreements herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto agree as of the date hereof as follows:
1. Employment. The Company hereby agrees to employ Executive, and Executive
hereby agrees to serve the Company, as its Chief executive Officer
("Employment") and as a Director for a period of three (3) years beginning on
the Effective Date. Executive may renew this Agreement by providing the Company
with written notice at least thirty (30) days, but not more than sixty (60)
days, before the end of the three-year period of Employment.
2. Scope of Employment.
(a) During the Employment, Executive will serve as President. In that
connection, Executive will (i) devote his full-time, attention, and
energies to the business of the Company and will diligently and to the best
of his ability perform all duties incident to his employment hereunder;
(ii) use his best efforts to promote the interests and goodwill of the
Company; and (iii) perform such other duties commensurate with his office
as the Board of Directors of the Company may from time-to-time assign to
him.
(b) Section 2(a) shall not be construed as preventing Executive from
(i) serving on corporate, civic or charitable boards or committees, or (ii)
making investments in other businesses or enterprises; provided that in no
event shall any such service, business activity or investment require the
provision of substantial services by Executive to the operations or the
affairs of such businesses or enterprises such that the provision thereof
would interfere in any respect with the performance of Executive's duties
hereunder; and subject to Section 6.
3. Compensation and Benefits During Employment. During the Employment, the
Company shall provide compensation to Executive as follows.
(a) The Company shall pay Executive US $15,000 per month for the first
year, $16,500 per month for the second year, and $18,150 per month for the
third year in equal semi-monthly installments. The Company shall be
responsible for withholding and the payment of all taxes to the Internal
Revenue Service as well as any and all other taxes payable in the United
States. with Executive being responsible for the payment of all taxes to
the Internal Revenue Service as well as any and other taxes payable in the
United States. Executive indemnifies the Company with respect to the
payment of any and all taxes owing and due from Executive's compensation.
(b) The Company shall reimburse Executive in connection with the
Employment in accordance with the Company's then-current policies.
(c) Executive will be entitled to participate in any health insurance
or other employee benefit plan which the Company may adopt in the future.
(d) Executive will be entitled to four (4) weeks of vacation per year.
(e) Executive will be entitled to participate in any incentive program
or discretionary bonus program of the Company which may be implemented in
the future by the Board of Directors.
(f) Executive will be entitled to participate in any stock option plan
of the Company which may be approved in the future by the Board of
Directors.
(g) Executive shall receive $30,000 upon execution of this Agreement
as a bonus to be used towards the purchase of a car.
Any act, or failure to act, based upon authority given pursuant to a
resolution duly adopted by the Board or based upon the advice of counsel for the
Company shall be conclusively presumed to be done, or omitted to be done, by
Executive in good faith and in the best interests of the Company and thus shall
not be deemed grounds for Termination for Cause.
4. Confidential Information.
(a) Executive acknowledges that the law provides the Company with
protection for its trade secrets and confidential information. Executive
will not disclose, directly or indirectly, any of the Company's
confidential business information or confidential technical information to
anyone without authorization from the Company's management. Executive will
not use any of the Company's confidential business information or
confidential technical information in any way, either during or after the
Employment with the Company, except as required in the course of the
Employment.
(b) Executive will strictly adhere to any obligations that may be owed
to former employers insofar as Executive's use or disclosure of their
confidential information is concerned.
(c) Information will not be deemed part of the confidential
information restricted by this Section 4 if Executive can show that: (i)
the information was in Executive's possession or within Executive's
knowledge before the Company disclosed it to Executive; (ii) the
information was or became generally known to those who could take economic
advantage of it; (iii) Executive obtained the information from a party
having the right to disclose it to Executive without violation of any
obligation to the Company, or (iv) Executive is required to disclose the
information pursuant to legal process (e.g., a subpoena), provided that
Executive notifies the Company immediately upon receiving or becoming aware
of the legal process in question. No combination of information will be
deemed to be within any of the four exceptions in the previous sentence,
however, whether or not the component parts of the combination are within
one or more exceptions, unless the combination itself and its economic
value and principles of operation are themselves within such an exception
or exceptions.
(d) All originals and all copies of any drawings, blueprints, manuals,
reports, computer programs or data, notebooks, notes, photographs, and all
other recorded, written, or printed matter relating to research,
manufacturing operations, or business of the Company made or received by
Executive during the Employment are the property of the Company. Upon
Termination of the Employment, whether or not for Cause, Executive will
immediately deliver to the Company all property of the Company which may
still be in Executive's possession. Executive will not remove or assist in
removing such property from the Company's premises under any circumstances,
either during the Employment or after Termination thereof, except as
authorized by the Company's management.
(e) For a period of six (6) months after the date of Termination of
the Employment, Executive will not, either directly or indirectly, hire or
employ or offer or participate in offering employment to any person who at
the time of such Termination or at any time during such year following the
time of such Termination was an employee of the Company without the prior
written consent of the Company.
5. Ownership of Intellectual Property.
(a) The Company will be the sole owner of any and all of Executive's
Inventions that are related to the Company's business, as defined in more
detail below.
(b) For purposes of this Agreement, "Inventions" means all inventions,
discoveries, and improvements (including, without limitation, any
information relating to manufacturing techniques, processes, formulas,
developments or experimental work, work in progress, or business trade
secrets), along with any and all other work product relating thereto.
(c) An Invention is "related to the Company's business"
("Company-Related Invention") if it is made, conceived, or reduced to
practice by Executive (in whole or in part, either alone or jointly with
others, whether or not during regular working hours), whether or not
potentially patentable or copyrightable in the U.S. or elsewhere, and it
either: (i) involves equipment, supplies, facilities, or trade secret
information of the Company; (ii) involves the time for which Executive was
or is to be compensated by the Company; (iii) relates to the business of
the Company or to its actual or demonstrably anticipated research and
development; or (iv) results, in whole or in part, from work performed by
Executive for the Company.
(d) Executive will promptly disclose to the Company, or its
nominee(s), without additional compensation, all Company-Related
Inventions.
(e) Executive will assist the Company, at the Company's expense, in
protecting any intellectual property rights that may be available anywhere
in the world for such Company-Related Inventions, including signing U.S. or
foreign patent applications, oaths or declarations relating to such patent
applications, and similar documents.
(f) To the extent that any Company-Related Invention is eligible under
applicable law to be deemed a "work made for hire," or otherwise to be
owned automatically by the Company, it will be deemed as such, without
additional compensation to Executive. In some jurisdictions, Executive may
have a right, title, or interest ("Right," including without limitation all
right, title, and interest arising under patent law, copyright law,
trade-secret law, semiconductor chip protection law, or otherwise, anywhere
in the world, including the right to xxx for present or past infringement)
in certain Company-related Inventions that cannot be automatically owned by
the Company. In that case, if applicable law permits Executive to assign
Executive's Right(s) in future Company-Related Inventions at this time,
then Executive hereby assigns any and all such Right(s) to the Company,
without additional compensation to Executive; if not, then Executive agrees
to assign any and all such Right(s) in any such future Company-Related
Inventions to the Company or its nominee(s) upon request, without
additional compensation to Executive.
(g) To the extent that Executive retains any so-called "moral rights"
or similar rights in a Company-Related Invention as a matter of law,
Executive authorizes the Company or its designee to make any changes it
desires to any part of that Company-Related Invention; to combine any such
part with other materials; and to withhold Executive's identity in
connection with any business operations relating to that Company-Related
Invention; in any case without additional compensation to Executive.
6. Non-competition. As a condition to, and in consideration of, the
Company's entering into this Agreement, and giving Executive access to certain
confidential and proprietary information, which Executive recognizes is valuable
to the Company and, therefore, its protection and maintenance constitutes a
legitimate interest to be protected by the provisions of this Section 6 as
applied to Executive and other employees similarly situated to Executive,
Executive acknowledges and hereby agrees as follows:
(a) that Executive is and will be engaged in the business of the
Company;
(b) that Executive has occupied a position of trust and confidence
with the Company prior to the Effective Date, and that during such period
and the period of Executive's Employment under this Agreement, Executive
has, and will, become familiar with the Company's trade secrets and with
other proprietary and confidential information concerning the Company;
(c) that the obligations of this Agreement are directly related to the
Employment and are necessary to protect the Company's legitimate business
interests; and that the Company's need for the covenants set forth in this
Agreement is based on the following: (i) the substantial time, money and
effort expended and to be expended by the Company in developing technical
designs, computer program source codes, marketing plans and similar
confidential information; (ii) the fact that Executive will be personally
entrusted with the Company's confidential and proprietary information;
(iii) the fact that, after having access to the Company's technology and
other confidential information, Executive could become a competitor of the
Company; and (iv) the highly competitive nature of the Company's industry,
including the premium that competitors of the Company place on acquiring
proprietary and competitive information; and
(d) that for a period commencing on the Effective Date and ending nine
(9) months following Termination as provided in Section 11, Executive will
not, directly or indirectly, serve as employee, agent, consultant,
stockholder, director, co-partner or in any other individual or
representative capacity, own, operate, manage, control, engage in, invest
in or participate in any manner in, act as consultant or advisor to, render
services for (alone or in association with any person, firm, corporation or
entity), or otherwise assist any person or entity that directly or
indirectly engages or proposes to engage in (i) the same, or a
substantially similar, type of business as that in which the Company
engages; or (ii) the business of the manufacturing, distribution or sale of
(A) products manufactured, distributed, sold or license by the Company at
the time of termination; or (B) products proposed at the time of
Termination to be manufactured, distributed, sold or licensed by the
Company, anywhere in North America (the "Territory"); provided, however
(e) that nothing contained herein shall be construed to prevent
Executive from investing in the stock or securities of any competing
corporation listed on any recognized national securities exchange or traded
in the over the counter market in the United States, but only if (i) such
investment is of a totally passive nature and does not involve Executive
devoting time to the management or operations of such corporation and
Executive is not otherwise involved in the business of such corporation;
and if (ii) Executive and his associates (as such term is defined in
Regulation 14(A) promulgated under the Securities Exchange Act of 1934, as
in effect on the Effective Date), collectively, do not own, directly or
indirectly, more than an aggregate of two (2) percent of the outstanding
stock or securities of such corporation.
7. Legal Fees and Expenses. In the event of a lawsuit, arbitration, or
other dispute-resolution proceeding between the Company and Executive arising
out of or relating to this Agreement, the prevailing party, in the proceeding as
a whole and/or in any interim or ancillary proceedings (e.g., opposed motions,
including without limitation motions for preliminary or temporary injunctive
relief) will be entitled to recover its reasonable attorneys' fees and expenses
unless the court or other forum determines that such a recovery would not serve
the interests of justice.
8. Successors.
(a) This Agreement shall inure to the benefit of and be binding upon
(i) the Company and its successors and assigns and (ii) Executive and
Executive's heirs and legal representatives, except that Executive's duties
and responsibilities under this Agreement are of a personal nature and will
not be assignable or delegable in whole or in part.
(b) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform it if no such
succession had taken place. As used in this Agreement, "the Company" shall
mean the Company as hereinbefore defined and any successor to its business
and/or assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law, or otherwise.
9. Arbitration.
(a) Except as set forth in paragraph (b) of this Section 9 or to the
extent prohibited by applicable law, any dispute, controversy or claim
arising out of or relating to this Agreement will be submitted to binding
arbitration before a single arbitrator in accordance with the National
Rules for the Resolution of Employment Disputes of the American Arbitration
Association in effect on the date of the demand for arbitration. The
arbitration shall take place before a single arbitrator, who will
preferably but not necessarily be a lawyer but who shall have at least five
years' experience in working in or with mining companies. Unless otherwise
agreed by the parties, the arbitration shall take place in the city in
which Executive's principal office space is located at the time of the
dispute or was located at the time of Termination of the Employment (if
applicable). The arbitrator is hereby directed to take all reasonable
measures not inconsistent with the interests of justice to expedite, and
minimize the cost of, the arbitration proceedings.
(b) To protect inventions, trade secrets, or other confidential
information of Section 4, and/or to enforce the non-competition provisions
of Section 6, the Company may seek temporary, preliminary, and/or permanent
injunctive relief in a court of competent jurisdiction, in each case,
without waiving its right to arbitration.
(c) At the request of either party, the arbitrator may take any
interim measures s/he deems necessary with respect to the subject matter of
the dispute, including measures for the preservation of confidentiality set
forth in this Agreement.
(d) Judgment upon the award rendered by the arbitrator may be entered
in any court having jurisdiction.
10. Indemnification. Company shall to the full extent permitted by law or
as set forth in the Articles of Incorporation, and any future amendments, and
the Bylaws of the Company, indemnify, defend and hold harmless Executive from
and against any and all claims, demands, liabilities, damages, losses and
expenses (including attorney's fees, court costs and disbursements) arising out
of the performance of duties hereunder except in the case of willful misconduct.
11. Termination
This Agreement and the employment relationship created hereby will
terminate (i) upon the disability or death of Executive under Section 11 (a) or
11(b); (ii) with cause under Section 11 (c); (iii) for good reason under Section
11 (d); or (iv) without cause under Section 11(e).
(a) Disability. Company shall have the right to terminate the
employment of Executive under this Agreement for disability in the event
Executive suffers an injury, illness, or incapacity of such character as to
substantially disable him from performing his duties without reasonable
accommodation by Executive hereunder for a period of more than thirty (30)
consecutive days upon Company giving at least thirty (30) days written
notice of termination.
(b) Death. This agreement will terminate on the Death of the
Executive.
(c) With Cause. Company may terminate this Agreement at any time
because of (i) Executive's material breach of any term of the Agreement,
(ii) the determination by the Board of Directors in the exercise of its
reasonable judgment that Executive has committed an act or acts
constituting a felony or other crime involving moral turpitude, dishonesty
or theft or fraud; or (iii) Executive's negligence in the performance of
his duties hereunder.
(d) Good Reason. The Executive may terminate his employment for "Good
Reason" by giving Company ten (10) days written notice if:
(i) he is assigned, without his express written consent,
any duties materially inconsistent with his positions,
duties, responsibilities, or status with Company as of the
date hereof, or a change in his reporting responsibilities
or titles as in effect as of the date hereof;
(ii) his compensation is reduced; or
(iii) Company does not pay any material amount of
compensation due hereunder and then fails either to pay such
amount within the ten (10) day notice period required for
termination hereunder or to contest in good faith such
notice. Further, if such contest is not resolved within
thirty (30) days, Company shall submit such dispute to
arbitration under Section 9.
(e) Without Cause. Company may terminate this Agreement without cause.
12. Obligations of Company Upon Termination.
(a) In the event of the termination of Executive's employment pursuant
to Section 11 (a), (b) or (c), Executive will be entitled only to the
compensation earned by him hereunder as of the date of such termination
(plus life insurance or disability benefits).
(b) In the event of the termination of Executive's employment pursuant
to Section 11 (d) or (e), Executive will be entitled to receive as
severance pay, an amount equal to $45,000 if within the first year, $49,500
if within the second year, $54,450 if within the third year of employment
in addition to all payments of salary earned through the date of
termination in one lump sum.
13. Other Provisions.
(a) All notices and statements with respect to this Agreement must be
in writing. Notices to the Company shall be delivered to the Chairman of
the Board or any vice president of the Company. Notices to Executive may be
delivered to Executive in person or sent to Executive's then-current home
address as indicated in the Company's records.
(b) This Agreement sets forth the entire agreement of the parties
concerning the subjects covered herein; there are no promises,
understandings, representations, or warranties of any kind concerning those
subjects except as expressly set forth in this Agreement.
(c) Any modification of this Agreement must be in writing and signed
by all parties; any attempt to modify this Agreement, orally or in writing,
not executed by all parties will be void.
(d) If any provision of this Agreement, or its application to anyone
or under any circumstances, is adjudicated to be invalid or unenforceable
in any jurisdiction, such invalidity or unenforceability will not affect
any other provision or application of this Agreement which can be given
effect without the invalid or unenforceable provision or application and
will not invalidate or render unenforceable such provision or application
in any other jurisdiction.
(e) This Agreement will be governed and interpreted under the laws of
the United States of America and the laws of the State of Florida as
applied to contracts made and carried out in Florida by residents of
Florida.
(f) No failure on the part of any party to enforce any provisions of
this Agreement will act as a waiver of the right to enforce that provision.
(g) Section headings are for convenience only and shall not define or
limit the provisions of this Agreement.
(h) This Agreement may be executed in several counterparts, each of
which is an original. It shall not be necessary in making proof of this
Agreement or any counterpart hereof to produce or account for any of the
other counterparts. A copy of this Agreement signed by one party and faxed
to another party shall be deemed to have been executed and delivered by the
signing party as though an original. A photocopy of this Agreement shall be
effective as an original for all purposes.
14. Summary of Terms of Employment
Effective Date July 29, 2003
Term & Commitment Three-year, full-time, renewable
Office / Position Chief Executive Officer
Initial Salary US $15,000 per month for the first
year, $16,500 per month for the
second year, and $18,150 per month
for the third year
This Agreement contains provisions requiring binding arbitration of
disputes. By signing this Agreement, Executive acknowledges that he or she (i)
has read and understood the entire Agreement; (ii) has received a copy of it
(iii) has had the opportunity to ask questions and consult counsel or other
advisors about its terms; and (iv) agrees to be bound by it.
Executed to be effective as of the Effective Date.
The World Golf League, Inc., by: Executive:
/s/ King Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
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Signature Signature
King Xxxxxxx
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Printed name
Director
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Title
