EMPLOYMENT AGREEMENT
BY THIS AGREEMENT, SPORTAN UNITED INDUSTRIES, INC. commonly referred to in
this agreement as Employer, located at 0000 Xxx Xxxxxxx Xx., Xxxxxxxxxx, Xxxxx,
employs Xxx X. Xxxx commonly referred to in this agreement as Employee who
accepts employment on the following terms and conditions:
ARTICLE 1
TERMS OF EMPLOYMENT
1.01. By this agreement Employer employs the Employee, Xxx X. Xxxx, as
Accounting/Office Manager, and the Employee accepts employment with the Employer
for a period of three (3) years beginning on the thirtieth day of September
2000.
ARTICLE 2
COMPENSATION
2.01. As compensation for services rendered under this agreement, the
Employee shall be paid by the Employer according to the following schedule:
Base Salary of $33,000 per year.
Such salary should be paid on the 1st and 16th of each month.
2.02. Upon execution of this agreement, Employer and Employee shall
enter into a Stock Option agreement, which is attached hereto as Exhibit "A",
pursuant to which Employer grants Employee options (the "Options") to purchase
100,000 shares of common stock ("Common Stock") per year at market value at year
end.
2.03. Upon execution of this agreement, Employer and Employee shall
enter into a Sign Up Bonus agreement, which is attached hereto as Exhibit "B",
pursuant to which Employer grants Employee $15,000 payable according to the
following schedule:
(a) $1,500 payable on or before November 15, 2000;
(b) $2,000 payable on or before January 15, 2001:
(c) The $11,500 balance is payable after future funding is
received by Sportan.
If Sportan is in default on the Sign Up Bonus, Xx. Xxxxx X. Xxxxxxx personally
guarantees any unpaid Sign Up Bonus balance due to Xxx X. Xxxx, which is
attached hereto as Exhibit "C".
ARTICLE 3
BENEFITS AND INSURANCE
3.01. Effective immediately and continuing throughout all of the term
hereof, Employee shall be eligible for major medical and dental insurance
coverage offered by Employer. The Employee shall reimburse the Employer for any
additional premiums caused from the Employee's dependents.
3.02. The Employee is authorized to incur reasonable business expenses
for promoting the business of the Employer, which are pre-approved by Employer,
including expenditures for entertainment and travel.
3.03. Employee shall be entitled to two weeks paid vacation during each
year of this agreement. After five years of continuous employment, the Employee
shall be entitled to three weeks of vacation; and after ten years of continuous
employment the Employee shall be entitled to four weeks of vacation.
ARTICLE 4
CONFIDENTIALITY
4.01. In the course of the performance of Employee's duties hereunder,
Employee recognizes and acknowledges that Employee may have access to certain
confidential and proprietary information of Employer or any of its affiliates.
Without the prior written consent of Employer, Employee shall not disclose any
such confidential or proprietary information to any person or firm, corporation,
association, or other entity for any reason or purpose whatsoever, and shall not
use such information, directly or indirectly, for Employee's own behalf or on
behalf of any other party. Employee agrees and affirms that all such
information is the sole property of Employer and that at the termination and/or
expiration of this agreement, at Employer's written request, Employee shall
promptly return to Employer any and all such information so requested by
Employer.
The provisions of this Section 4 shall not, however, prohibit Employee
from disclosing to others or using in any manner information that:
(a) has been published or has become part of the public domain other
than by acts, omissions or fault of Employee;
(b) has been furnished or made known to Employee by third parties
(other than those acting directly or indirectly for or on behalf
of Employee) as a matter of legal right without restriction on
its use or disclosure;
(c) was in the possession of Employee prior to obtaining such
information from Employer in connection with the performance of
this agreement; or
(d) is required to be disclosed by law.
ARTICLE 5
TERMINATION
5.01. This agreement and the employment relationship created hereby
will terminate (i) upon the death or disability of Employee under section 5 (a)
or 5 (b); (ii) with cause under Section 5 (c); (iii) for good reason under
Section 5 (d); or (iv) upon the voluntary termination of employment by Employee
under Section 5 (e).
(a) DISABILITY. Employer shall have the right to terminate the
employment of the Employee under this agreement for disability in
the event Employee suffers an injury, illness, or incapacity of
such character as to substantially disable him from performing
his duties without reasonable accommodation by Employer hereunder
for a period of more than thirty (30) consecutive days upon
Employer giving at least thirty (30) days written notice of
termination.
(b) DEATH. This agreement will terminate on the Death of the
Employee.
(c) WITH CAUSE. Employer may terminate this agreement at any time
because of (i) Employee'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 Employee has
committed an act or acts constituting a felony or other crime
involving moral turpitude, dishonesty or theft or fraud; or (iii)
Employee's gross negligence in the performance of his duties
hereunder.
(d) GOOD REASON. The Employee may terminate his employment for "Good
Reason" if:
(i) he is assigned, without his express written consent, any
duties materially inconsistent with his positions, duties,
responsibilities, or status with Employer 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)Employer 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, Employer shall submit such dispute to
arbitration under Section 13.
(e) VOLUNTARY TERMINATION. The Employee may terminate his employment
voluntarily.
(f) WITHOUT CAUSE. Employer may terminate this Agreement without
cause.
ARTICLE 6
OBLIGATIONS OF EMPLOYER UPON TERMINATION
6.01. (a) In the event of the termination of Employee's employment
pursuant to Section 5 (c) (with cause) or (e) (voluntary termination), Employee
will be entitled only to the compensation earned by him hereunder as of the date
of such termination (plus life insurance or disability benefits), plus the
rights to those Options that have vested as of the termination date.
(b) In the event of the termination of Employee's employment
pursuant to Section 5 (a) (disability) or (b) (death), Employee, or Employee's
heirs will be entitled only to the compensation earned by him hereunder as of
the date of such termination (plus life insurance or disability benefits), plus
the rights to all Options, vested or not vested, under the same terms as if this
Agreement was not terminated.
(c) In the event of the termination of Employee's employment
pursuant to Section 5 (d) (good reason) or (f) (without cause), Employee will be
entitled to receive as severance pay, one month notice and two week severance of
Employee's Base salary at such time as this Agreement is terminated, and
Employee shall have the rights to all Options, vested or not vested, under the
same terms as if this Agreement had not terminated.
ARTICLE 7
CHANGE IN CONTROL
Effect of Employer's Merger, Transfer of Assets, or Dissolution:
7.01. This agreement shall not be terminated by any:
(a) Merger or consolidation when the Employer is not the consolidated or
surviving corporation.
(b) Transfer of all or substantially all of the assets of the Employer.
(c) Voluntary or involuntary dissolution of the Employer.
In the event of any such merger, consolidation, or transfer of assets, the
surviving or resulting corporation or the transferee of the Employer's assets
shall be bound by and shall have the benefit of the provisions of this agreement
and this agreement shall automatically renew for a period of three years under
the same terms and conditions. The Employer shall take all actions necessary to
insure that such corporation or transferee is bound by the provisions of this
agreement.
ARTICLE 8
WAIVER OF BREACH
8.01. The waiver by any party hereto of a breach of any provision of
this agreement will not operate or be construed as a waiver of any subsequent
breach by any party.
ARTICLE 9
INDEMNIFICATION
9.01. Employer shall to the full extent permitted by law or as set
forth in the Amended and Restated Articles of Incorporation and the Bylaws of
the Company, indemnify, defend and hold harmless Employee from and against any
and all claims, demands, liabilities, damages, losses and expenses (including
reasonable attorney's fees, court costs and disbursements) arising out of the
performance of his duties hereunder except in the case of a willful misconduct.
ARTICLE 10
NOTICES
10.01. Any notices, consents, demands, requests, approvals and other
communications to be given under this agreement by either party to the other
will be deemed to have been duly given if given in writing and personally
delivered or within two days if sent by mail, registered or certified, postage
prepaid with return receipt requested, as follows:
If to Employer: Sportan United Industries, Inc.
0000 Xxx Xxxxxxx Xx.
Xxxxxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxx
If to Employee: Xxx X. Xxxx
0000 00xx Xxxxxx
Xxxxxxxxxx, Xxxxx 00000
Notices delivered personally will be deemed communicated as of actual
receipt.
ARTICLE 11
ENTIRE AGREEMENT
11.01. This agreement and the agreements contemplated hereby constitute
the entire agreement of the parties regarding the subject matter hereof, and
supersede all prior agreements and understanding, both written and oral, among
the parties, or any of them, with respect to the subject matter hereof.
ARTICLE 12
SEVERABILITY
12.01. If any provision of this agreement is held to be illegal,
invalid or unenforceable under present or future laws effective during this
agreement, such provision will be fully severable and this agreement will be
construed and enforced as if such illegal, invalid or unenforceable provision
never comprised a part hereof; and the remaining provisions hereof will remain
in full force and effect and will not be affected by the illegal, invalid or
unenforceable provision or by its severance herefrom. Furthermore, in lieu of
such illegal, invalid or unenforceable provision there will be added
automatically as part of this agreement a provision as similar in its terms to
such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
ARTICLE 13
ARBITRATION
13.01. If a dispute should arise regarding this agreement, the parties
agree that all claims, disputes, controversies, differences or other matters in
question arising out of this relationship shall be settled finally, completely
and conclusively by arbitration in Huntsville, Texas in accordance with the
Commercial Arbitration Rules of the American Arbitration Association (the
"Rules"). The governing law of this agreement shall be the substantive law of
the State of Texas, without giving effect to conflict of laws. A decision of
the arbitrator shall be final, conclusive and binding on Employer and Employee.
Any arbitration held in accordance with this paragraph shall be private and
confidential and no person shall be entitled to attend the hearings except the
arbitrator, Employee, Employee's attorneys, a representative of Employer,
Employer's attorneys, and advisors to or witnesses for any party. The matters
submitted to arbitration, the hearings and proceedings and the arbitration award
shall be kept and maintained in the strictest confidence by Employee and
Employer and shall not be discussed, disclosed or communicated to any persons
except as may be required for the preparation of expert testimony. On request
of any party, the record of the proceeding shall be sealed and may not be
disclosed except insofar, and only insofar, as may be necessary to enforce the
award of the arbitrator and any judgement enforcing an award. The prevailing
party shall be entitled to recover reasonable and necessary attorneys' fees and
costs from the non-prevailing party and the determination of such fees and costs
and the award thereof shall be included in the claims to be resolved by the
arbitrator hereunder.
ARTICLE 14
CAPTIONS
14.01. The captions in this agreement are for convenience of reference
only and will not limit or otherwise affect any of the terms or provisions
hereof.
ARTICLE 15
GENDER AND NUMBER
15.01. When the context requires, the gender of all words used herein
will include the masculine, feminine and neuter and the number of all words will
include the singular and plural.
ARTICLE 16
COUNTERPARTS
16.01. This agreement may be executed in one or more counterparts, each
of which will be deemed an original and all of which will constitute one and the
same instrument, but only one of which need be produced.
ARTICLE 17
EMPLOYER AUTHORIZATION
17.01. Employer represents that the Board of Directors has approved
this agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this agreement as
of the day and year first above written.
EMPLOYER:
SPORTAN UNITED INDUSTRIES, INC.
By: ____________________________
Xxxxx X. Xxxxxxx, President
EMPLOYEE:
By: ___________________________
Xxx X. Xxxx
