EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of August ___, 1999, is made and
entered into by and between GLOBAL CASINOS, INC., a Utah
corporation, ("Company") and XXXX XXXXXXXXX ("Employee"). For the
definition of certain terms used in this Agreement, see Section 6
below.
The Company and Employee agree as follows:
Section 1. Employment.
1.1. Engagement. The Company will employ Employee, and
Employee will accept employment, as an Employee of Company for the
Term, subject to and in accordance with the provisions of this
Agreement.
1.2. Duties. During the Term, Employee will serve
Company in the capacity of Vice President of Operations or such
other capacity as may be designated by the Board, or President
Employee's duties as an Employee of Company include all of the
duties normally associated with such capacity. Employee's duties
will also include such other activities, responsibilities and
duties as may reasonably be assigned from time to time by the
President or the Board. If Employee is elected or appointed by the
Board as an officer or other position with Company, Employee will
perform the duties of such position as described in the Company's
bylaws or as determined from time to time by the Board.
1.3. Attention and Effort. During normal business hours,
for such periods of time as the Company has specific projects
assigned to Employee, Employee will devote Employee's best efforts,
entire productive time, ability and attention to the business of
Company. For such periods of time as there are no specific
projects assigned to Employee, Employee shall only be required to
devote such time, effort and attention to the affairs of the
Company as may from time to time be requested by the President or
Board, subject to the agreement of Employee. Further, during the
Term, Employee will not, without Company's prior written consent,
directly or indirectly engage in any employment, consulting or
other activity which would interfere or conflict with the
performance of Employee's duties or obligations to Company or which
would directly or indirectly compete with Company.
Section 2. Compensation.
2.1. Base Salary. During the Term, Company will pay
Employee a base salary equal to $65,000 per year, payable bi-
weekly.
2.2. Incentive Compensation. In addition to base salary
described in paragraph 2.1, Employee may be entitled to receive
such bonuses and other compensation as may be determined by the
Board or the President (e.g., pursuant to such bonus, stock and
other incentive compensation plans as may be adopted and maintained
by Company during the Term).
2.3 Stock Incentive Plan. The Company has adopted and
implemented a Stock Incentive Plan pursuant to which the Company
shall be authorized to issue incentive stock options qualified
under Section 422 of the Internal Revenue Code of 1986, as amended
("Stock Plan"). Employee shall be entitled to receive incentive
stock options exercisable to purchase 30,000 shares of the
Company's common stock at an exercise price per share equal to the
average bid and ask prices of the Company's common stock as quoted
on the over-the-counter market on the date of this Agreement. Of
such incentive stock options, 10,000 incentive stock options shall
vest and become exercisable on each anniversary of the date of this
Agreement, subject to Employee's continued employment on each such
anniversary date. The incentive stock options shall be exercisable
for a period of five years from the date of grant, subject to
vesting and subject to early termination as provided for in the
Stock Plan.
2.4. Benefits. During the Term, Employee will be
entitled to participate in such fringe benefit programs (e.g.,
medical, dental, disability, life insurance and vacation programs)
as may be provided from time to time by the Board or any person or
committee appointed by the Board to determine fringe benefit
programs, all subject to and in accordance with the eligibility and
other requirements of such programs.
2.5. Expenses. During the Term, Company will reimburse
Employee for reasonable out-of-pocket expenses incurred by Employee
in performance of service for Company under this Agreement (e.g.,
transportation, lodging and food expenses incurred while traveling
on Company business), all subject to such policies and other
requirements as Company may from time to time establish for its
Employees generally.
2.6. Withholding and Offset. Payment of the base salary
and any other amounts to Employee will be subject to such
withholding and offset as may be provided by applicable law (e.g.,
for income tax purposes) or consented to by Employee.
2.7. Indemnification. Subject to applicable law, the
Company shall indemnify and hold Employee harmless from any and all
loss, judgments or claims Employee may suffer in the proper
discharge of Employee's duties hereunder, including, but not
limited to attorney's fees and court costs.
Section 3. Term and Termination.
3.1. Commencement. The Term will commence on August ___,1999.
3.2. Termination. The Term will terminate upon the first
of the following to occur: (a) Company's termination of Employee's
Employment for Cause pursuant to paragraph 3.3; (b) Company's
termination of Employee's employment without Cause pursuant to
paragraph 3.4; (c) Employee resigns from employment as an Employee
of Company pursuant to paragraph 3.5; (d) Employee terminates his
employment for Cause pursuant to paragraph 3.6; (e) the death of
Employee; or (f) the disability of Employee resulting from injury,
illness or disease, whether of a mental or physical nature, which
substantially impairs or prevents the ability of Employee to
satisfactorily perform Employee's duties and obligations under this
Agreement for a period of 90 days; (g) the Change in Control of the
Company or (h) three (3) years from the commencement date. If the
Employee is terminated pursuant to subparagraphs 3.2(a), (c), (e),
(f) or (h), the Employee shall be entitled to no additional
compensation under Section 2 herein after the date of termination.
However, if an Employee is terminated pursuant to subparagraphs
3.2(b), (d) or (g), Employee shall be entitled to receive the
Termination Payments provided for in Section 3.9 below.
3.3. Termination for Cause. Company may at any time
terminate Employee's employment for Cause without prior notice.
3.4. Termination Without Cause. Company may at any time
terminate Employee's employment with or without Cause by giving
Employee notice of the same at least five (5) days prior to the
effective date of such termination.
3.5. Resignation. Employee may at any time resign from
employment with Company by giving Company notice of thirty (30)
days prior to the effective date of such termination.
3.6. Termination For Cause By Employee. Employee may at
any time terminate Employee's employment for Cause without prior
notice.
3.7. Termination Due to Change in Control. Employee may
terminate Employee's employment due to a Change in Control without
prior notice.
3.8. Disability. If in the event of a disability
described in paragraph 3.2(e) Company decides not to terminate
Employee's employment and Employee is entitled to receive payments
(i.e., in lieu of wages or other compensation for employment) on
account of such disability under any fringe benefit program
provided by Company, then the base salary described in
paragraph 2.1 will be reduced to the extent of such entitlement.
3.9. Termination Payments. In the event the Employee's
employment is terminated pursuant to paragraph 3.4 or 3.6, the
Company shall be obligated to pay to Employee Termination Payments
equal to, in the aggregate, all of the Employee's then current base
salary payable for the number of years, and fractions of years,
remaining on the Term of this Agreement as defined in
Section 3.2(g) above. Such Termination Payments shall be due and
payable when and as paid prior to the date of Termination.
3.10. Return of Company Property. Upon termination
of the Term, Employee will deliver to Company any and all property
of Company which is in Employee's possession or control (including,
but not limited to, any and all Materials).
3.11. Survival. Sections 4 and 5, together with all
other provisions of this Agreement that may reasonably be
interpreted or construed to survive any termination of the Term,
will survive any termination of the Term.
Section 4.Confidentiality.
4.1. Confidential Information. In the course of
Employee's employment with Company, Employee will have access to
certain Confidential Information. Employee will use and disclose
Confidential Information solely for the purposes for which it is
provided and will take reasonable precautions to prevent any
unauthorized use or disclosure of the same. Employee will not use
or disclose any Confidential Information (a) other than as required
in the course of Employee's employment with Company, (b) for
Employee's own personal gain, or (c) in any manner contrary to the
best interests of Company.
4.2. Proprietary Information of Others. Employee will
not use in the course of Employee's employment with Company, or
disclose or otherwise make available to Company any information,
documents or other items which Employee may have received from any
other person (e.g., a prior employer) and which Employee is
prohibited from so using, disclosing or making available (e.g., by
reason of any contract, court order, law or obligation by which
Employee is bound).
4.3. Work Product. All Work Product which Employee
conceives, develops or first reduces to practice, either alone or
with others, during the Term will be the sole and exclusive
property of Company, together with any and all related Intellectual
Property Rights. The foregoing applies to all Work Product which
relates to Employee's performance of services under this Agreement,
Company's Field of Business or Company's actual or demonstrably
anticipated research or development and whether or not such Work
Products are conceived, developed or first reduced to practice
during normal business hours or with the use of any equipment,
supplies, facilities, personnel, Confidential Information or other
resource of Company.
4.4. Disclosure and Protection of Work Products.
Employee will disclose all Work Products described in paragraph 4.3
to Company, promptly and in writing. At Company's request and at
Company's expense, Employee will assist Company or its designee in
efforts to protect such Work Products. Such assistance may
include, but is not necessarily limited to, the following:
(a) making application in the United States and in foreign
countries for a patent or copyright on any Work Products specified
by Company; (b) executing documents of assignment to Company or its
designee of all Employee's right, title and interest in and to any
Work Product and related Intellectual Property Rights; and
(c) taking such additional action (including, but not limited to,
the execution and delivery of documents) to perfect, evidence or
vest in Company or its designee all rights, title and interest in
and to any Work Product and any related Intellectual Property
Right.
4.5. Materials. All Materials and related Intellectual
Property Rights will be the sole and exclusive property of Company,
whether or not such Materials are marked with any Intellectual
Property Right notice of Company or Employee. All such Materials
authored, made, conceived or developed by Employee or made
available to Employee (or any copies or extracts thereof) will be
held by Employee in trust solely for the benefit of Company.
Employee will use such Materials only as required in the course of
Employee's employment with Company or as otherwise authorized in
writing by Company.
4.6. Notice. This Agreement does not apply to any
invention for which no equipment, supplies, facility or trade
secret information of Company was used, and which was developed
entirely on Employee's own time, unless: (a) the invention relates
(i) directly to the Company or (ii) to Company's actual or
demonstrable anticipated research or development; or (b) the
invention results from any work performed by Employee for Company.
Section 5.Competition.
5.1 Employee covenants to and with the Company, 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 if terminated pursuant to Sections 3.3 or 3.5 of
this Agreement, he will not directly or indirectly, either as
principal, agent, manager, employee, owner, partner (dominant or
otherwise), stockholder, director or other officer of a
corporation, creditor, consultant or otherwise, engage or become
interested financially or otherwise, in any business, agency, trade
or occupation similar to or in competition with the Company or its
affiliates; nor shall Employee, during the term of this Agreement
and for a period of six (6) months from the date of the termination
of this Agreement, consult or 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 its own behalf,
related to the discovery of processes, improvements, developments
or commercialization of any service or product developed or reduced
to practice during the period of employment with the Company,
unless Employee shall have first obtained the Company's expressed
written consent thereto. Because of the nature of the business,
the parties agree that it is reasonable for the covenant to apply
to any state of the United States or any political subdivision of
a foreign nation or state within which the Company owns or operates
a gaming facility. If the geographic area is determined by a court
to be overly broad in scope, it shall be modified only to the
extent necessary to bring it within the requirements of the law and
interpreted to give the Company the broadest protection allowed by
law.
5.2 In the event of a breach or threatened breach by Employee
of any provisions of this Section 5, the Company shall be entitled
to an injunction restraining it from the commission of such breach.
Nothing herein contained shall be construed as prohibiting the
Company 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 5 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 Company, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the
Company of said covenants.
5.3 The covenants contained in this Section 5 shall terminate
and, upon termination, shall be unenforceable and of no further
legal force and effect, in the event the Company, or any successor
to the Company, becomes insolvent or ceases for any reason to
conduct business operations for a continuous period of at least
thirty (30) days.
5.4 The Company 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 purchasers and assignees of the
assets and business of the Company.
Section 6.Non-Interference.
6.1 The 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.
6.2 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, the Employee covenants and agrees that for so long as
the 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 six (6) months from the date the Employee ceases to hold
any such position or status with the Corporation or otherwise
becomes disaffiliated with the Corporation, he will not directly,
or permit or encourage others to directly (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, or conduct any
business activity in cooperation or association with, any person or
entity who is then employed by the Corporation, or any subsidiary
of the Corporation, except with the consent of the Corporation.
6.3 In the event any court of competent jurisdiction
determines or holds that all or any portion of the covenants
contained in this Section 6 are unlawful, invalid, or unenforceable
for any reasons, then the parties hereto agree to modify the
provisions of this Section 6 if and only to the extent necessary to
render the covenants herein contained enforceable and otherwise in
conformance with all legal requirements.
Section 7.Clients and Customers.
7.1 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, the Employee
covenants and agrees that, for so long as the 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 the Employee ceases to hold any such position or status
with the Corporation or otherwise becomes disaffiliated with the
Corporation, he will not directly, or permit or encourage others to
directly (i) interfere in any manner whatsoever with the
Corporation's contractual or prospective 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, or (iii) solicit, offer to retain, or retain, or in
any other manner engage or enter into any business or other
arrangement with any of the Corporation's customers or clients to
provide any services or products to any of such customers or
clients as they may from time to time exist or be constituted,
except and unless such arrangement for the provision of products or
services is not in any way competitive with the products or
services actually provided by the Corporation to its clients or
customers or proposed to be provided by the Corporation to its
clients or customers, or except under circumstances to which the
Corporation has consented in writing, which consent shall not be
unreasonably withheld.
7.2 In the event any court of competent jurisdiction
determines or holds that all or any portions of the covenants
contained in this Section 7 are unlawful, invalid or unenforceable
for any reason, then the parties hereto agree to modify the
provisions of this Section 7 if and only to the extent necessary to
render the covenants herein contained enforceable and otherwise in
conformance with all legal requirements.
Section 8.Definitions.
Whenever used in this Agreement with initial letters
capitalized, the following terms will have the following specified meanings:
8.1. "Board" means Company's Board of Directors.
8.2. "Cause" for purposes of paragraph 3.3, shall include
the occurrence of any of the following:
a. The Employee commits a material breach of the
terms of this Agreement, which shall remain uncured for a period of
thirty (30) days after written notice by the Company of such
breach.
b. The Employee is shown to have engaged in any
act of dishonesty detrimental to the Company, or fraud upon the
Corporation, any of its affiliated companies, or any of its
customers or clients;
c. The Employee fails to devote his full time,
attention and efforts to the business and affairs of the
Corporation or its affiliated companies which condition remains
uncured for a period of thirty (30) days after written notice by
the Company; or
d. The Employee has been grossly negligent in the
performance of his employment duties or responsibilities which
condition remains uncured for a period of thirty (30) days after
written notice by the Company.
8.3. "Cause," for purposes of paragraph 3.6, shall
include the occurrence of any of the following:
a. The breach or violation by the Company of the
any of the material terms of this Agreement, which shall remain
uncured for a period of thirty (30) days of written notice by
Employee of such breach;
b. Any significant change in position, duties and
responsibilities of Employee to which the Employee does not
consent;
c. Any move of the Company or its principal
officers resulting in or any other requirement that the Employee,
without his consent, change his principal residence.
d. The Company has shown to have engaged in any
active material dishonesty or fraud upon the Employee.
e. There shall occur a Change of Control of the
Company.
8.4. "Change of Control" means any transaction of the
Company involving (i) the merger or consolidation of the Company
into or with another entity where the Company's shareholders
receive less than 50% of the outstanding voting securities of the
new or continuing entity, (ii) the sale of all or substantially all
of the Company's assets, (iii) any person not already a stockholder
of the Company becoming a beneficial owner, directly or indirectly,
of the securities of the Company representing 50% or more of the
combined voting power of the Company's then outstanding securities,
(iv) a change in the majority of the Board of Directors of the
Company, or (v) the Company terminating its business or liquidating
its assets.
8.5. "President" means Company's Chief Executive Officer.
8.6. "Company's Field of Business" means any of the
fields of the Company's business. On the date of the Agreement,
Company's Field of Business includes, but is not necessarily
limited to, the following: owning and operating gaming casinos and
gaming related businesses.
8.7. "Confidential Information" means any information
that is confidential, proprietary or trade secret information of
Company or any of its customer or clients or any other information
the use of disclosure of which by Company is prohibited or
restricted (e.g., by reason of any contract, court order, law or
other obligation by which Company is bound). "Confidential
Information" may include, but is not necessarily limited to,
technology, computer programs, business plans, marketing plans,
information as to existing or future products or services of
Company, financial projections, unpublished works of original
authorship, customer lists, financial information, and trade
secrets.
Notwithstanding the foregoing, the restrictions on
disclosure and use of information and materials as set forth in
Section 4 shall not apply to the following, and the following is
not confidential or proprietary information: (1) any information
or materials which were generally available to the public at the
time made available to Employee by the Company; (2) any information
or materials which become, without breach of Section 4 and through
no fault of Employee, generally available to the public; (3) any
information or materials which Employee has received from other
sources prior to the date of this Agreement, subject to no
restrictions on disclosure applicable to Employee; and (4) any
information or materials which Employee at any time lawfully
obtains from a third party who is not under any obligation of
secrecy or confidentiality to the Company, under circumstances
permitting disclosure by Employee to others without restriction.
8.8. "Intellectual Property Right" means any patent,
copyright, trade secret, trade name, trademark or other
intellectual property right.
8.9. "Materials" means hardware, software, programs,
manuals, drawings, designs, articles, writings, data, notes,
memorandum, manuscripts, notebooks, proposals, work plans, interim
and final reports, project files, client contract records and other
tangible manifestations of any Confidential Information or Work
Products.
8.10. "President" means Company's President.
8.11. "Term" means the term of Employee's employment
as an Employee of Company pursuant to this Agreement.
8.12. "Work Product" means any invention, discovery,
concept or idea (including, but not necessarily limited to,
hardware, software programs, or processes, techniques, know-how,
methods, systems, improvements, analytical reports, and other
developments).
Section 9. Miscellaneous.
9.1. Compliance with Laws. In the performance of this
Agreement, each party will comply with all applicable laws,
regulations, rules, orders and other requirements of governmental
authorities having jurisdiction.
9.2. Equitable Relief. Employee acknowledges that: the
provisions of Sections 4 and 5 are essential to Company; Company
would not enter into this Agreement if it did not include such
provisions; the damages sustained by Company as a result of any
breach of such provisions cannot be adequately remedied by damages;
and, in addition to any other right or remedy that Company may have
(e.g., under this Agreement, by law or otherwise), Company will be
entitled to injunctive and other equitable relief to prevent or
curtail any breach of any such provisions.
9.3. Nonwaiver. The failure of either party to insist
upon or enforce strict performance by the other of any provision of
this Agreement or to exercise any right, remedy or provision of
this Agreement will not be interpreted or construed as a waiver or
relinquishment to any extent of such party's right to consent or
rely upon the same in that or any other instance; rather, the same
will be and remain in full force and effect.
9.4. Entire Agreement. This Agreement constitutes the
Entire Agreement, and supersedes any and all prior Agreements,
between Company and Employee. No amendment, modification or waiver
of any of the provisions of this Agreement will be valid unless set
forth in a written instrument signed by the party to be bound
thereby.
9.5. Applicable Law. This Agreement will be interpreted,
construed and enforced in all respects in accordance with the local
laws of the State of Colorado, without reference to its choice of
law rules.
9.6. Attorneys Fees. In the event that either party
consults or retains an attorney to enforce the terms of this
Agreement, the prevailing party in any such dispute or litigation
shall be entitled to recover from the other party its reasonable
attorneys fees and costs incurred.
9.7. Severability. If any of the provisions of this
Agreement are held to be invalid or unenforceable, the remaining
provisions shall nevertheless continue to be valid and enforceable
to the extent permitted by law.
COMPANY: GLOBAL CASINOS, INC., a Utah corporation
By:/s/Xxxxxxx X. Xxxxxxxxxxx
Xxxxxxx X. Xxxxxxxxxxx, President
EMPLOYEE: By:/s/Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxx
