EMPLOYMENT AGREEMENT
EXHIBIT
10.3
This
EMPLOYMENT AGREEMENT dated as of June 1, 2007 is entered into by and between
Golf Academies Limited (the “Company”), and Xxxx Xxxxxxxx Xxxxxx Xxxxxx the
undersigned individual (“Executive”).
RECITAL
The
Company and Executive desire to enter into an Employment Agreement setting
forth
the terms and conditions of Executive’s employment with the
Company.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual covenants and agreements hereinafter
set forth, the Company and Executive agree as follows:
1. Employment.
(a) Term.
The
Company hereby employs Executive to serve as Managing Director and to serve
in
such additional or different position or positions as the Company and Executive
may determine during the term of this Employment Agreement. This Employment
Agreement shall be for a period of 3 years, commencing on May 1, 2007, and
shall
be renewable each year after the year ending April 30, 2010 (“Employment
Period”), subject to Section 4 of this Employment Agreement.
(b) Duties
and Responsibilities.
Executive will be reporting to the President and Chief Executive Officer of
GPS
Industries, Inc., a Nevada corporation. Executive’s duties will include
training, development, and assistance to others within or contracted by the
Company in countries throughout the world. The position will require consistent
communication with customers, distributors, suppliers, sub-contractors,
attendance of trade shows, instructing where required and any other duties
as
may be required by the Company for the position of the Managing Director. The
initial principal location at which Executive shall perform services for the
Company shall be at: Golf Academies Limited Xxxxxxx Xxxxx Xxxxxx Xxxx Xxxxxxxxxx
east Sussex XX00 0XX Xxxxxxx. Any and all subsequent principal locations shall
be restricted to Europe, and Executive shall not be required to perform any
of
the duties or responsibilities set forth in this Agreement outside of Europe.
2. Compensation.
(a) Base
Salary. Executive shall be paid a base salary (“Base Salary”) at the annual rate
of £75,000 p.a.
3. Other
Employment Benefits.
(a) Business
Expenses.
Upon
submission of itemized expense statements in the manner specified by the
Company, Executive shall be entitled to reimbursement for reasonable travel,
including mileage allowance, and other reasonable business expenses duly
incurred by Executive in the performance of his duties under this Agreement.
All
expense statements will be paid within seven (7) days of receipt.
Exhibit
10.3 - 1
(i) Executive
shall be entitled to “business” class air travel accommodations for flights
exceeding four hours and hotel accommodations not to exceed 4 star.
(b) Medical
Plans.
Executive shall be entitled to medical health coverage as in place at present
time, not to exceed £1,500 p.a. per year.
(c) Vacation.
Executive shall be entitled to 4 weeks of paid annual vacation, plus national
holidays. If the Employment Period is extended by the parties to this Agreement
pursuant to Section 1, then Executive shall be entitled to 5 weeks of paid
annual vacation plus national holidays for each year after the initial
Employment Period, beginning on May 1, 2010.
(d) Company
Stock Option Plan.
Executive shall be entitled to participate in the GPS Industries, Inc. Stock
Option Plan (the “Plan”). Any grant (including the terms thereof) shall be at
the sole discretion of the Board of Directors or Committee administering the
Plan.
(e) Bonus
Program.
Executive may be eligible to receive a bonus within the sole discretion of
the
Company, based on corporate achievements throughout the year and for creating
extraordinary circumstances (such as a major contribution to the bottom line
by
way of a cost reduction, major contracts signed, exceeding revenue targets,
etc.).
4. Termination
of Employment.
(a) Termination
with Cause by the Company.
This
Employment Agreement may be terminated for “good cause” (as hereinafter defined)
by the Company provided that the Company shall:
(i) Give
Executive the Notice of Termination (as hereinafter defined) and
(ii) Pay
Executive his annual base salary through the Date of Termination (as hereinafter
defined) at the rate in effect at the time the Notice of Termination is given
plus any bonus or incentive compensation which has been earned or has become
payable pursuant to the terms of any compensation or benefit plan as of the
Date
of Termination, but which have not yet been paid.
(b) Termination
without Cause by the Company.
This
Employment Agreement may be terminated by the Company:
(i) On
April
30, 2010;
(ii) During
the Employment Period without cause.
In the
event this Employment Agreement is terminated by the Company for any reason
other than for good cause (or the Company gives notice that it is not renewing
the Employment Agreement), the Company shall continue to pay to Executive the
compensation and other benefits described in Section 2 of this Employment
Agreement, except for annual cash bonuses or incentive compensation, for the
remainder of the Employment Period.
Exhibit
10.3 - 2
The
Company shall continue to provide medical, hospitalization or disability
benefits coverage to Executive, his spouse and dependents for a period of three
(3) months from the Date of Termination.
(iii) By
reason
of the death or Disability Reason (as hereinafter defined) provided that the
Company shall continue to pay to Executive (or the estate of Executive in the
event of termination due to the death of Executive) the compensation and other
benefits described in Section 2. Executive’s right to terminate his employment
for Good Reason shall not be affected by his incapacity due to physical or
mental illness. In the event of termination by the Company by reason of
Executive’s death or Disability, medical, hospitalization or disability benefits
coverage comparable to that provided by the Company during Executive’s lifetime
shall be provided to Executive, his spouse and dependents for three (3) months
from the Date of Termination, and for three (3) months from the Date of
Termination with respect to medical and hospitalization benefits for the
Executive and his family. The benefits provided under this Section shall be
no
less favorable to Executive in terms of amounts, deductibles and costs to him,
if any, than such benefits provided by the Company to him and shall not be
interpreted so as to limit any benefits to which Executive, as a terminated
Executive of the Company, or his family may be entitled under the Company’s life
insurance, medical, hospitalization or disability plans following his Date
of
Termination or under applicable law.
(c) Termination
for Good Reason by Executive.
In the
event of Termination by the Executive for Good Reason, the Company shall
continue to pay to Executive the compensation and other benefits described
in
Section 2 of this Employment Agreement, except for annual cash bonuses or
incentive compensation as follows:
(i) During
the first year of this contract for two (2) months from the Date of
Termination;
(ii) One
(1)
additional month for each additional year (or portion thereof) of employment
thereafter.
The
Company shall continue to provide medical, hospitalization or disability
benefits coverage to Executive, his spouse and dependents for a period of three
(3) months from the Date of Termination.
(d) Change
of Control.
Executive’s rights and obligations under this Agreement shall not be
transferable by assignment or otherwise, and any purported assignment, transfer
or delegation thereof shall be void. This Agreement shall inure to the benefit
of, and be binding upon and enforceable by, any purchaser of substantially
all
of Company’s assets, any corporate successor to Company or any assignee thereof
should a Change in Control occur during the term of this contract.
(e) Definitions.
In
addition to the words and terms elsewhere defined in this Employment Agreement,
certain capitalized words and terms used in this Employment Agreement shall
have
the meanings given to them by the definitions and descriptions in this Section
entitled Definitions unless the context or use indicates another or different
meaning or intent, and such definition shall be equally applicable to both
the
singular and plural forms of any of the capitalized words and terms herein
defined. The following words and terms are defined terms under this Employment
Agreement:
Exhibit
10.3 - 3
(i) “Disability”
shall mean a physical or mental illness which, in the judgment of the Company
after consultation with the licensed physician attending Executive, impairs
Executive’s ability to substantially perform his duties under this Employment
Agreement as an Executive and as a result of which he shall have been absent
from his duties with the Company on a full-time basis for two (2) consecutive
months.
(ii) A
termination for “good cause” shall mean a termination of this Employment
Agreement by reason of a good faith determination by the Board of one of the
following:
(1) Executive’s
breach of any of the covenants contained in this Agreement;
(2) Executive’s
conviction by, or entry of a plea of guilty or “nolo contendere” in, a court of
competent and final jurisdiction for any crime involving moral turpitude or
punishable by imprisonment in the jurisdiction involved;
(3) Executive’s
commission of an act of fraud or embezzlement upon the Company’s funds, whether
prior to or subsequent to the date hereof;
(4) Executive’s
refusal to perform, or continuing repeated failures to perform, Executive’s
duties as required by this Agreement (including, without limitation, Executive’s
inability to perform Executive’s duties hereunder as a result of chronic
alcoholism or drug addiction and/or as a result of any failure to comply with
any laws, rules or regulations of any governmental entity with respect to
Executive’s employment by the Company);
(5) Executive’s
gross negligence, insubordination or material violation of any duty of loyalty
to the Company or any other material misconduct on the part of
Executive;
(6) “Good
Reason” shall mean the occurrence of any of the following events without
Executive’s prior express written consent:
(7) Any
material change in Executive’s status, title, authorities or responsibilities
under this Employment Agreement which represents a demotion from such status,
title, position or responsibilities which are materially inconsistent with
his
status, title, position or work responsibilities set forth in this Employment
Agreement, or any removal of Executive from, or failure to appoint, elect,
reappoint or reelect Executive to, any of such positions, except in connection
with the termination of his employment with Cause, or as a result of his death
or Disability, provided, however, that no change in title, authorities or
responsibilities customarily attributable solely to the Company ceasing to
be a
publicly traded corporation shall constitute Good Reason hereunder;
Exhibit
10.3 - 4
(8) Any
other
material breach by the Company of any provision of this Employment
Agreement;
(9) In
the
event of a Change of Control, the failure of the Company to obtain a
satisfactory agreement from any successor or assign of the Company to assume
and
agree to perform Company’s obligations under this Employment
Agreement.
(iii) Change
of Control.
“Change
of Control” shall be deemed to have occurred when:
(1) Securities
of the Company representing 50% or more of the combined voting power of the
Company’s then outstanding voting securities are acquired pursuant to a tender
offer or an exchange offer by a person or entity which is not a wholly-owned
subsidiary of the Company or any of its affiliates;
(2) A
merger
or consolidation is consummated in which the Company is a constituent
corporation and which results in less than 50% of the outstanding voting
securities of the surviving or resulting entity being owned by the then existing
stockholders of the Company;
(3) A
sale is
consummated by the Company of substantially all of the Company’s assets to a
person or entity which is not a wholly-owned subsidiary of the Company or any
of
its affiliates; or
(4) During
any period of two consecutive years, individuals who, at the beginning of such
period, constituted the Board cease, for any reason, to constitute at least
a
majority thereof, unless the election or nomination for election for each new
director was approved by the vote of at least two-thirds of the directors then
still in office who were directors at the beginning of the period.
(iv) Notice
of Termination.
“Notice
of Termination” shall mean a written notice which shall indicate the specified
termination provision in this Employment Agreement relied upon and shall set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of Executive’s employment under the provision so
indicated; provided, however, no such purported termination shall be effective
without such Notice of Termination; provided further, however, any purported
termination by the Company or by Executive shall be communicated by a Notice
of
Termination to the other party hereto in accordance with the Section entitled
Notices of this Employment Agreement.
(v) Date
of Termination.
“Date
of Termination” shall mean the date specified in the Notice of Termination
(which, in the case of a termination pursuant to the Section entitled
Termination Without Cause By The Company Or For Good Reason By Executive of
this
Employment Agreement shall not be less than sixty (60) days, and in the case
of
a termination pursuant to this Section, entitled Definitions, of this Employment
Agreement shall not be more than sixty (60) days, from the date such Notice
of
Termination is given); provided, however, that if within thirty (30) days after
any Notice of Termination is given the party receiving such Notice of
Termination notifies the other party that a dispute exists concerning the
termination, the Date of Termination shall be the date finally determined by
either mutual written agreement of the parties or by the final judgment, order
or decree of a court of competent jurisdiction (the time for appeal there from
having expired and no appeal having been taken).
Exhibit
10.3 - 5
(f) Fees
and Expenses.
The
Company shall pay all reasonable legal fees and related expenses (including
the
costs of experts, evidence and counsel) incurred by Executive as a result of
a
contest or dispute over Executive’s termination of employment if such contest or
dispute is resolved in Executive’s favor.
5. Confidential
Information and Invention Assignments.
(a) Executive
is simultaneously executing a Confidential Information and Invention Assignment
Agreement (the “Confidential Information and Invention Assignment Agreement”).
The obligations under the Confidential Information and Invention Assignment
Agreement shall survive termination of this Agreement for any
reason.
6. Exclusive
Employment.
(a) Save
as
agreed in writing, during employment with the Company, Executive will not do
anything to compete with the Company’s present or contemplated business, nor
will he plan or organize any competitive business activity. Executive will
not
enter into any agreement which conflicts with his duties or obligations to
the
Company. Executive will not during his employment or within one (1) year after
it ends, without the Company’s express written consent, directly or indirectly,
solicit or encourage any Executive, agent, independent contractor, supplier,
customer, consultant or any other person or company to terminate or alter a
relationship with the Company.
7. Miscellaneous.
(a) Amendment.
This
Agreement may be amended only by a writing signed by Executive and by a duly
authorized representative of the Company.
(b) Entire
Agreement.
This
Agreement together with the attached exhibits and the Confidential Information
and Invention Assignment Agreement contains the entire agreement and
understanding between the parties concerning Executive’s employment. It is
intended by the parties as a complete and exclusive statement of the terms
of
their agreement. It supersedes and replaces all prior negotiations and all
agreements, proposed or otherwise, whether written or oral, concerning
Executive’s employment with the Company. Any representation, promise or
agreement not specifically included in this Agreement shall not be binding
upon
or enforceable against either party. This is a fully integrated
agreement.
(c) Severability.
If any
provision of this Agreement or the application thereof is held invalid, the
invalidity shall not affect other provisions or applications of the Agreement
which can be given effect without the invalid provisions or applications and,
to
this end, the provisions of this Agreement are declared to be severable.
(d) Construction.
The
headings and captions of this Agreement are provided for convenience only and
are intended to have no effect in construing or interpreting this Agreement.
The
language in all parts of this Agreement shall be in all cases construed
according to its fair meaning and not strictly for or against the Company or
Executive.
Exhibit
10.3 - 6
(e) Rights
Cumulative.
The
rights and remedies provided by this Agreement are cumulative, and the exercise
of any right or remedy by either party hereto (or by its successor), wither
pursuant to this Agreement, to any other agreement, or to law, shall not
preclude or waive its right to exercise any or all other rights and
remedies.
(f) Notices.
Any
notice, request, consent or approval required or permitted to be given under
this Agreement or pursuant to law shall be sufficient if in writing, and if
and
when sent by certified or registered mail, with postage prepaid, to Executive’s
residence (as noted in the Company’s records), or to the Company’s President at
the company’s principal office, as the case may be.
(g) Arbitration.
Any
claim or controversy arising out of, relating to or concerning this Agreement,
the breach of this Agreement, the employment of Executive or the termination
of
Executive’s employment including any statutory claims (including, without
limitation, the arbitrability of any claim or controversy) shall be settled
by
arbitration in Surrey, British Columbia in accordance with applicable
law.
(h) Governing
Law and Venue.
This
Agreement is to be governed by and construed in accordance with the laws of
England, applicable to contracts made and to be performed wholly within England,
and without regard to the conflicts of laws principles thereof.
[Signature
page to follow]
Exhibit
10.3 - 7
IN
WITNESS WHEREOF, the parties hereto have duly executed this Employment Agreement
as of the date set forth below.
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GOLF
ACADEMIES LIMITED
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By:
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| XXXX XXXXXXXX XXXXXX XXXXXX |
Name:
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Title:
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Exhibit
10.3 - 8
