AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement is entered into on July
11, 2011 by and between Xxxx Xxxxxxx Racing Adventure, Inc., a Florida
corporation (the "Company"), and Xxxxxxx X. Xxxxxxx, an individual (the
"Executive").
WITNESSETH:
WHEREAS, the Executive has served as the President of the Company since
its inception in 1998;
WHEREAS, the Company and the Executive have previously entered into an
Employment Agreement dated November 6, 2008 (the "Previous Employment
Agreement");
WHEREAS, the Company and the Executive desire to amend and restate the
Previous Employment Agreement:
WHEREAS, the Company desires to continue to employ the Executive, and
the Executive desires to continue to be employed by the Company,
pursuant to the provisions of this Amended and Restated Employment
Agreement (the "Agreement");
NOW, THEREFORE, in consideration of the premises, and the respective
covenants and agreements of each of the Company and the Executive
contained in this Agreement, each of the Company and the Executive
agrees as follows:
ARTICLE I
Certain Definitions
The following terms shall have the following respective meanings when
utilized in this Agreement:
"Affiliate" means, with respect to any specified Person, any other
Person which, directly or indirectly, controls, or is controlled by or
is under common control with, such specified Person. For purposes of
this definition, the concept of "control," when used with respect to
any specified Person, signifies the possession of the power to direct
the management and policies of such specified Person, directly or
indirectly, whether through the ownership of voting securities or
partnership or other equity or ownership interests, by contract or
otherwise.
"Agreement" means this Amended and Restated Employment Agreement as it
is now or hereafter in effect.
"Approved Board" means a Board of Directors of the Company that, as of
a given date, is comprised of individuals at least a majority of whom
have continuously served as directors of the Company during the period
of two years ending on such date, unless the election of each director
who was not a director at the beginning of such two year period was
approved in advance by the directors representing at least two-thirds
of the directors then in office who were directors at the beginning of
such two year period.
"Approved Change in Control of the Company" means any transaction or
series of transactions which:
(a) results, or is reasonably anticipated to result, in a Change in
Control of the Company;
(b) is approved by the requisite vote of an Approved Board pursuant to,
and in accordance with, applicable law and the Articles of
Incorporation and Bylaws of the Company; and
(c) if required by applicable law or the Articles of Incorporation or
Bylaws of the Company, is approved by the requisite vote of the
shareholders of the Company pursuant to, and in accordance with,
applicable law and the Articles of Incorporation and Bylaws of the
Company.
"Bonus" means, as of a given date, the most recent annual performance
bonus awarded by the Company to the Executive.
"Cause" means any action by the Executive or any inaction by the
Executive which, after due consideration, is reasonably determined by
the Board of Directors of the Company to constitute:
(a) fraud, embezzlement, misappropriation, dishonesty or breach of
trust;
(b) a felony or moral turpitude;
(c) material breach or violation of any or all of the covenants,
agreements and obligations of the Executive set forth in this
Agreement, other than as the result of the Executive's death or
Disability;
(d) a willful or knowing failure or refusal by the Executive to perform
any or all of his material duties and responsibilities as an officer of
the Company, other than as the result of the Executive's death or
Disability, or
(e) gross negligence by the Executive in the performance of any or all
of his material duties and responsibilities as an officer of the
Company, other than as a result of the Executive's death or Disability;
Provided, however, that if the basis for any termination of the
Executive's employment by the Company as set forth in the Termination
Notice delivered by the Company to the Executive is any or all of the
definitions of Cause set forth in paragraphs (c), (d) or (e) of this
definition, then, in such event, the Executive shall have thirty (30)
days from and after the date of his receipt of such Termination Notice
to present a reasonable plan to cure such action or inaction specified
in the Termination Notice, which plan may require more than thirty (3)
days to cure the specified action or inaction, but such plan shall be
reasonably satisfactory to the Company.
"Change in Control of the Company" means the change in control of the
Company of a nature which would be required to be reported (a) in
response to Item 6(e) of Schedule 14A of Regulation 14A, as in effect
on the date of this Agreement, promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), (b) in response
to Item 1 of the Current Report on Form 9-K, as in effect on the date
of this Agreement, promulgated under the Exchange Act, or (c) in any
filing by the Company with the United States Securities and Exchange
Commission; provided, however, that, without limitation, a Change in
Control of the Company shall be deemed to have occurred if:
(a) subsequent to the date of this Agreement, any "person" (as such
term is defined in Sections 15(d)(3) and 14(d)(2) of the Exchange Act),
other than the Company, any subsidiary of the Company or any
compensation, retirement, pension or other employee benefit plan or
trust of the Company or any subsidiary of the Company, becomes the
"beneficial owner" (as such term is defined in Rule 13d-3 promulgated
under the Exchange Act), directly or indirectly, of securities of the
Company or any successor to the Company (whether by merger,
consolidation or otherwise) representing twenty percent (20%) or more
of the combined voting power of the Company's then outstanding
securities;
(b) during any period of two consecutive years, the individuals who at
the beginning of such period constitute the Board of Directors of the
Company cease for any reason to constitute at least a majority of such
Board of Directors, unless the election of each director who was not a
director at the beginning of such period has been approved in advance
by the directors representing at least two-thirds of the directors then
in office who were directors at the beginning of such period;
(c) the Company shall merge or consolidate with or into another
corporation or other entity, or enter into a binding agreement to merge
or consolidate with or into another corporation or other entity other
than a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving corporation or
entity) not less than eighty percent (80%) of the combined voting power
of the voting securities of the Company or such surviving corporation
or entity outstanding immediately after such merger or consolidation;
(d) the Company shall sell, lease, exchange or otherwise dispose of all
or substantially all of its assets, or enter into a binding agreement
for the sale, lease, exchange or other disposition of all or
substantially all of its assets, in one transaction or in a series of
related transactions; or
(e) the Company shall liquidate or dissolve, or any plan or proposal
shall be adopted for the liquidation or dissolution of the Company.
"Company" means Xxxx Xxxxxxx Racing Adventure, Inc., a Florida
corporation.
"Compensation" means the sum of the Executive's Salary and Bonus.
"Disability" means any mental or physical illness, condition,
disability or incapacity which prevents the Executive from reasonably
discharging his duties and responsibilities as an officer of the
Company. If any disagreement or dispute shall arise between the
Company and the Executive as to whether the Executive suffers from any
Disability, then, in such event, the Executive shall submit to the
physical or mental examination of a licensed physician, who is mutually
agreeable to the Company and the Executive, and such physician shall
determine whether the Executive suffers from any Disability. In the
absence of fraud or bad faith, the determination of such physician
shall be final and binding upon the Company and the Executive. The
entire cost of such examination shall be paid for solely by the
Company.
"Executive" means Xxxxxxx X. Xxxxxxx, an individual.
"Good Reason" means:
(a) the assignment by the Board of Directors of the Company to the
Executive, without his express written consent, of duties and
responsibilities which results in the Executive having less significant
duties and responsibilities which results in the Executive having less
significant duties and responsibilities or exercising less significant
power and authority than he had, or duties and responsibilities or
power and authority not comparable to that of the level and nature
which he had, immediately prior to such assignment.
(b) the removal of the Executive from, or a failure to reappoint the
Executive to, his then current position with the Company or its
subsidiaries or affiliates, except (i) with the Executive's express
written consent or (ii) in connection with any termination of the
Executive's employment by the Company as the result of the Executive's
Protracted Disability or for Cause;
(c) the Company's failure to perform on a timely basis its obligations
under this Agreement.
(d) the Company's requiring the Executive, without his express written
consent, to travel on Company business to an extent substantially
greater than the Executive's business travel obligations immediately
prior to such time;
(e) the Company's requiring the Executive, without his express written
consent, to change his place of permanent residency; or
(f) the failure of the Company to obtain the express written assumption
of, and agreement to perform on a timely basis, the Company's
obligations under this Agreement by any successor to the Company as
required by Article XI of this Agreement.
"Person" means any individual, person, firm, corporation, partnership,
limited liability company, association or other entity, or any
combination of any of the foregoing.
"Protracted Disability" means any Disability which prevents the
Executive from reasonably discharging his duties and responsibilities
as an officer of the Company for a period of twelve (12) consecutive
months.
"Salary" means, as of a given date, the Executive's then current annual
salary.
"Successor Agreement" shall have the meaning set forth in Article XI of
this Agreement.
"Termination Date" means a specific date note less than forty-five (45)
nor more than ninety (90) days from and after the date of any
termination Notice upon which the Executive's employment by the Company
shall be terminated in accordance with the provisions of this
Agreement.
"Termination Notice" shall mean a written notice which sets forth (a)
the specific provision of this agreement relied upon to terminate the
Executive's employment,(b) in reasonable detail the facts and
circumstances claimed to provide the basis for the termination of the
Executive's employment, and (c) a Termination Date.
"Territory" shall have the meaning set forth in Section 9.1(c) of this
agreement.
ARTICLE II
Employment
The Company employs the Executive and the Executive accepts such
employment. Subject to the direction of the Board of Directors, the
Executive shall serve as the Chairman of the Board, President and
Secretary of the Company and any subsidiary corporations and other
entities of the Company. The Executive shall have such
responsibilities, perform such duties and exercise such power and
authority as are inherent in, or incident to, such offices. The
Executive shall devote substantially all of his business time and
attention and his best efforts to the diligent performance of his
duties as an employee of the Company.
ARTICLE III
Term
Subject to the provisions of Article VII below, the term of this
Agreement shall be for a period of five (5) years, commencing on July
1, 2011 and expiring on June 30, 2016.
ARTICLE IV
Salary
4.1 Initial Salary. In full payment for the obligations to be
performed by the Executive during the term of this Agreement, the
Company shall pay to the Executive a salary (subject to applicable
payroll and/or other taxes required by law to be withheld) equal to One
Hundred Fifty Thousand Dollars ($150,000) per annum.
4.2 Adjustment of Salary. As promptly as practicable after the
conclusion of each of the Company's fiscal years during the term of the
Executive's employment hereunder, commencing at the conclusion of the
Company's fiscal year ending December 31, 2012, the certified public
accountants regularly retained by the Company shall determine the
increase or decrease, if any, in the cost of living, using as the basis
of such computation the then current application Consumer Price Index
published by the Bureau of Labor Statistics of the United States
Department of Labor (the "Index"0. Any such increase or decrease shall
be computed as follows:
(a) The Index number in the column for Charlotte, North Carolina,
entitled "all items," for the month of January shall be the "Current
Index Number" and the corresponding Index number for the immediately
preceding January, commencing with January 2012, shall be the "Base
Index Number.
(b) The increase or decrease in the cost of living shall be determined
by dividing the Current Index Number by the Base Index Number and
subtracting the integer 1 from the quotient thereof, in accordance with
the following formula.
Increase/Decrease
In = Current Index Number - 1
Cost of Living ====================
(c) The percentage increase or decrease in the cost of living,
multiplied by the Executive then current salary, shall be the increase
or decrease required to be determined pursuant to this Section 4.2
(d) If the publication of the Consumer Price Index is discontinued for
any reason then the parties shall utilize comparable statistics of the
cost of living for Charlotte, North Carolina, as computed and published
by an agency or instrumentality of the United States of America or by a
responsible financial periodical or recognized authority then to be
selected by the parties.
(e) In the absence of fraud, any determination made by the Company
accountants pursuant to Section 4.2 shall be conclusive and binding
upon the Company and the Executive.
(f) The Executive's then current salary shall be adjusted as of
January 1 of each fiscal year of the Company, commencing with the
fiscal year ending December 31, 2013, in accordance with the provisions
of Section 4.2 and such adjustment shall remain in effect during such
fiscal year.
ARTICLE V
Performance Bonus
The Executive may from time to time receive a performance bonus as
shall be determined by the Board of Directors of the Company.
ARTICLE VI
Certain Fringe Benefits
6.1 Generally. The Executive shall be entitled to receive such
benefits and to participate in such benefit plans as are generally
provided from time to time by the Company to its senior management
employees' provided, however, that nothing contained in this Section
6.1 shall be construed to obligate the Company to provide any specific
benefits to its employees generally.
6.2 Vacations. The Executive shall be entitled to vacation time on an
annual basis in accordance with such policies as are from time to time
adopted by the Company's Board of Directors with respect to its senior
management employees.
6.3 Health Insurance. The Company shall provide health insurance to
the Executive and his family or reimburse him for the cost of such
health insurance.
6.4 Automobile. The Executive shall be entitled to receive
reimbursement for all automobile expenses as are incurred by the
Executive in connection with the performance of his duties under this
Agreement. Such reimbursement shall include the cost of operating the
automobile, the cost for maintenance of such automobile/
6.5 Stock Options. The Executive shall be entitled to participate in
the Company's stock option plans as may from time to time be in effect
and to receive such incentive or other stock options as may from time
to time be granted to him thereunder.
6.6 Business, Travel and Entertainment Expenses. Within a reasonable
time after the submission of appropriate receipts and other evidence by
the Executive, the Company shall pay, or reimburse the Executive for,
all reasonable business, travel and entertainment expenses incurred by
the Executive in connection with the performance of his duties and
responsibilities on behalf of the Company.
ARTICLE VII
Termination of Employment
7.1 Termination of Employment
(a) Notwithstanding the provisions of Article III hereof, this
Agreement (i) shall automatically terminate upon the death of the
Executive pursuant to the provisions of Section 7.2 hereof, (ii) may be
terminated at any time by the Company pursuant to the provisions of
Sections 7.3 or 7.4 hereof, and (iii) may be terminated at any time by
the Executive pursuant to the provisions of Section 7.5 hereof.
(b) If either the Company or the Executive shall desire to terminate
the Executive's employment by the Company pursuant to any of the
provisions of Sections 7.3, 7.4, or 7.5 of this Agreement, then, in
such event, the party causing such termination shall provide a
Termination Notice to the other party.
(c) If this Agreement shall be terminated pursuant to any of the
provisions of this Article VII, the Company shall be discharged from
all of its obligations to the Executive under this Agreement upon the
payment to the Executive of the amount set forth in the Section of this
Article VII pursuant to which such termination shall occur. The
Executive's sole and exclusive remedy for the termination of this
Agreement prior to June 30, 2016, regardless of whether such
termination shall be initiated by the Company or the Executive, and
regardless of whether such termination shall be with or without Cause,
shall be the payment by the Company to the Executive of the amount set
forth in the Section of this Article VII pursuant to which such
termination shall occur.
7.2 Death of Executive. If during the term of this Agreement the
Executive shall die, then the employment of the Executive by the
Company shall automatically terminate on the date of the Executive's
death. In such event, not more than thirty (30) days after the date of
the Executive's death, the Company shall pay to the Executive's estate
or as otherwise directed by the Executive's personal representative or
executor, an amount in cash equal to the Executive's Compensation
(subject to applicable payroll and/or other taxes required by law to be
withheld) determined as of the date of the Executive's death.
7.3 Disability of Executive
(a) In the event that at any time during the term of this Agreement the
Executive shall suffer any Disability, then the Company shall be
obligated to continue to pay in the ordinary and normal course of its
business to the Executive or his legal representative, as the case may
be, the Executive's Compensation (subject to applicable payroll and/or
other taxes required by law to be withheld) from the date that the
Executive shall first suffer any such Disability to the date that the
Executive's employment by the Company shall be terminated pursuant to
any of the provisions of this Agreement.
(b) In the event that the Executive shall suffer any Protracted
Disability during the term of this agreement, then the Company may
terminate the Executive's employment under this Agreement. In such
event, in addition to any other befits which may have been provided by
the Company to the Executive or his legal representative, as the case
may be, pursuant to the provisions of Section 7.3(a) above, not later
than the Termination Date specified in the Termination Notice delivered
by the Company to the Executive or his legal representative, as the
case may be, the Company shall pay to the Executive or as otherwise
directed by the Executive's legal representative an amount in cash
equal to the Executive's Compensation (subject to applicable payroll
and/or taxes required by law to be withheld) determined as of the date
of such Termination Notice. Subsequent to such Termination Date, the
Executive or his legal representative, as the case may be, shall also
be entitled to receive any benefits which may be payable under any
disability insurance policy or disability plan provided to the
Executive by the Company.
7.4 Termination of Employment by Company.
(a) The Company may terminate this Agreement at any time with Cause.
In such event, the Company shall be obligated to continue to pay in the
ordinary and normal course of its business to the Executive only his
Salary (subject to applicable payroll and/or other taxes required by
law to be withheld) through the Termination Date set forth in the
Termination Notice.
(b) The Company may terminate this Agreement at any time without
Cause. In such event, (i) not later than the Termination Date
specified in the Termination Notice, the Company shall pay to the
Executive an amount in cash equal to the sum of the Executive's
Compensation (subject to applicable payroll and/or other taxes required
by law to be withheld) determined as of the date of such Termination
Notice through the remaining term of the Agreement and (ii) the
restrictions set forth Section 9.1(c) hereof shall not be applicable to
the Executive.
7.5 Termination of Employment by Executive
(a) The Executive may terminate this Agreement at any time with Good
Reason. In such event, (i) not later than the termination Date
specified in the Termination Notice, the Company shall pay to the
Executive an amount in cash equal to the sum of the Executive's
Compensation (subject to applicable payroll and/or other taxes required
by law to be withheld) determined as of the date of such Termination
Notice through the remaining term of the Agreement and (ii) the
restrictions set forth in Section 9.1(c) hereof shall not be applicable
to the Executive.
(b) The Executive may terminate this Agreement at any time without
Good Reason. In such event, the Company shall be obligated to continue
to pay in the ordinary and normal course of its business to the
Executive only his Salary (subject to applicable payroll and/or other
taxes required by law to be withheld) through the Termination Date set
forth in the Termination Notice.
ARTICLE VIII
Termination of Employment
Subsequent to a Change in Control of the Company
8.1 Termination of Employment. Notwithstanding the provisions of
Articles III and VII of this Agreement, in the event that (a) there
shall occur any Change in Control of the Company, other than an
Approved Change in Control of the Company, and (b) at any time
subsequent to the date of any such Change in Control of the Company,
either (i) the Company shall terminate the employment of the Executive
for any reason, other than as the result of the death or the Protracted
Disability of the Executive or for Cause, or (ii) the Executive shall
terminate his employment for Good Reason, then, in any such event, (A)
not later than the Termination Date specified in the Termination Notice
delivered by the Company to the Executive, or by the Executive to the
Company, as the case may be, the Company shall pay to the Executive an
amount in each equal to the Executive's Compensation, determined as of
the date of such Termination Notice, multiplied by three (subject to
applicable payroll and/or other taxes required by law to be withheld),
and (B) any and all stock options granted to the Executive under any
stock option plan of the Company as may from time to time be in effect,
which shall not by their terms have vested on or before such
Termination Date, shall vest on such Termination Date.
8.2 Limitation on Payment. Notwithstanding anything to the contrary
set forth in Section 8.1 above, the amount paid by the Company to the
Executive shall be limited to the maximum amount which will not
constitute a "parachute payment," as such term is defined in Section
280G(b)(2) of the Internal Revenue Code of 1986, as amended. This
limitation shall first be applied to amounts provided pursuant to
clause (B) of Section 8.1 hereof (otherwise included in the calculation
of a parachute payment) to the extent thereof and then to amounts
provided pursuant to clause (A) to Section 8.1 hereof.
ARTICLE IX
Certain Restrictions on the Executive
9.1 Certain Restrictive Covenants. The Executive covenants and agrees
with the Company as follows:
(a) He shall not at any time, directly or indirectly, for himself or
for any other Person approach, counsel, solicit, induce or attempt to
approach, counsel, solicit or induce any Person employed or engaged by
the Company or any of its Affiliates, whether such Person is a full-
time employee, part-time employee or independent contractor, to
terminate his, her or its employment or independent contractor
relationship, to terminate his, her or its employment or independent
contractor relationship with the Company or its Affiliate.
(b) He shall not at any time, directly or indirectly, for himself or
for any other Person employ, attempt to employ or enter into any
contractual arrangement for employment with, engage, attempt to engage
or enter into any contractual arrangement for the engagement of, any
employee or former employee or independent contractor or contractor of
the Company or any of its Affiliates, unless such former employee or
independent contractor shall not have been employed or engaged by the
Company or any of its Affiliates for a period of at least one year.
(c) He shall not, while he is employed by the Company and for a period
of two years from and after the date that his employment by the Company
ceases or terminates for any reason, directly or indirectly, for
herself or for any other Person:
(i) acquire or own in any manner any interest in, or loan any
amount to, any Person which competes in any manner with the Company or
any of its Affiliates in the United States of America, its territories
and possessions, and the District of Columbia (the "Territory");
(ii) be employed by or serve as an employee, agent, officer, or
director of, or as a consultant to, or as an independent contractor or
salesperson for, any Person which competes in any manner with the
Company or any of its Affiliates in the Territory;
(iii) compete in any manner with the Company or any of its
Affiliates in the Territory; or
(vi) interfere with, disrupt, or attempt to interfere with or
disrupt, any existing relationship, contractual or otherwise, between
the Company or any Affiliate of the Company on the one hand, and any of
the respective customers, suppliers, vendors, or other Persons with
which any of the Company or its Affiliates deals with on the other.
The foregoing provisions of this Section 9.1(c) shall not prevent the
Executive from acquiring and owning not more than one percent of the
equity securities of any Person whose securities are listed for trading
on a national securities exchange or are regularly traded in the over-
the-counter securities market.
9.2 Independent Agreements. The restrictive covenants set forth in
Section 9.1 above (collectively, the "Restrictive Covenants") shall be
construed as agreements independent of any other provision contained in
this Agreement, and the existence of any claim or cause of action,
whether predicated upon this Agreement or otherwise, against the
Company shall not constitute a defense to the enforcement by the
Company of any of the Restrictive Covenants. The Executive
acknowledges that the Company has fully performed all obligations
entitling it to the benefits of the Restrictive Covenants, and that the
Restrictive Covenants, therefore, are not executory or otherwise
subject to rejection under the Bankruptcy Code of 1978.
9.3 Reasonable Restraint. Each of the Company and the Executive
acknowledges that each of the Restrictive Covenants is a reasonable and
necessary restraint of trade and does not violate any applicable laws,
rules or regulations, including without limitation the Xxxxxxx
Antitrust Act, applicable North Carolina law or the common law. Each
of the Company and the Executive acknowledges that the Company or its
Affiliates conducts its business activities throughout the Territory.
Each of the Company and the Executive acknowledges that each of the
Restrictive Covenants is supported by valid and legitimate business
interests, including without limitation the need to protect the
Confidential Information and Trade Secrets of the Company (as such
terms are hereinafter defined), and the need to protect the substantial
relationships of the Company with its employees and independent
contractors, current and prospectus customers, and current and
prospective vendors, and that the period of restriction set forth in
Section 9.1(c) above is essential to the full protection of each of
such valid and legitimate business interests.
9.4 Severability. Each of the Company and the Executive agrees that
each of the Restrictive Covenants is reasonable and proper with respect
to duration, geographical scope, and lines of business. If all or any
portion of any of the Restrictive Covenants is held by a court of
competent jurisdiction to be unreasonable, arbitrary or against public
policy for any reason, then all or such portion of such Restrictive
Covenants shall be considered divisible as to duration, geographical
scope or lines of business, or may be otherwise narrowed so as to be
enforceable. If a court of competent jurisdiction shall determine that
a time period, a geographical area or a specified line of business is
unreasonable, arbitrary or against public policy for any reason, then a
shorter period, a smaller geographical area or a narrower line of
business, as shall be determine by such court to be reasonable, non-
arbitrary and not against public policy, may be enforced against the
Executive by the Company.
ARTICLE X
Confidential Information and Trade Secrets
10.1 Certain Definitions.
(a) "Confidential Information" includes information which (a) has been
or is developed or is otherwise owned by the Company or any of its
Affiliates, whether developed by the ascertainable by proper means by
the public, (c) if disclosed to the public, would be harmful to the
interests of the Company or any of its Affiliates, (d) has limited
disclosure within the Company or its Affiliate, or (e) is treated or
designated by the Company or any of its Affiliates as being
confidential. Confidential Information may consist of technical
information, including without limitation, inventions, formulas,
compilations computer programs, methods, purchasing techniques and
processes, sales techniques and processes, market data and pricing and
discounting practices, as well as business information relating to the
Company's or any of its Affiliates' financial condition, financial
arrangements, business plans or strategies (such as new products and
services and plans for sales, marketing, purchasing, distribution,
services or promotions), employee training materials sales, manuals,
customer lists, customer needs, contacts, accounts and the like, vendor
or supplier lists, vendor or supplier needs, contacts, accounts and the
like, personnel, payroll and financial data and records, and any and
all data, information, plans, processes, procedures, methods and
records of any kind or nature whatsoever, regardless of the form of
storage medium and wherever located, related in any manner to the
Company, any of its Affiliates or their respective businesses,
operations or affairs or directors, officers, employees, agents or
independent contractors.
(b) "Trade Secrets" include Confidential Information which is
sufficiently secret to derive actual or potential economic value to the
Company or any of its Affiliates from not being generally know to, and
not being readily ascertainable by, the Company's or any of its
Affiliates' competitors and other Persons (including without limitation
the Company's or any of its Affiliates' vendors, suppliers and
customers), which information gives, or has the potential of giving,
the Company or any of its Affiliates an advantage over the Company's or
or any of its Affiliates' competitors or other Persons (including
without limitation the Company's or any of its Affiliates' vendors,
suppliers and customers) which can obtain economic value from the
disclosure or use of the information and which information the Company
or any of its Affiliates has taken, and will continue to take,
reasonable steps to maintain as secret or confidential vis-a-vis its
current and potential competitors and other Persons (including without
limitation the Company's or any of its Affiliates' vendors, suppliers
and customers).
10.2 Ownership of Confidential Information and Trade Secrets. The
Executive acknowledges that, in the course of his relationship with the
Company and its Affiliates, he has received, used, had access to and
became familiar with, or in the future will receive, use, have access
to and become familiar with, the Confidential Information and the Trade
Secrets which are owned by the Company or its Affiliates or which are
or will be otherwise used in connection with the Company's or any of
its Affiliates' current or future business. The Executive acknowledges
and agrees that all such Confidential Information and Trade Secrets are
and shall remain the sole and exclusive property of the Company and
that the covenants set forth in Section 10.3 below are fair and
reasonable.
10.3 Non-Disclosure. The Executive shall not, directly or indirectly,
at any time disclose to any Person, or take or use for the purposes of
any Person, other than the Company or any of its Affiliates, any
Confidential Information or Trade Secrets. The Executive shall not,
directly or indirectly, at any time copy or place any Confidential
Information or Trade Secrets on to any personal computer or other data
collection or storage device that is not owned by the Company or one of
its Affiliates. The Executive authorizes the Company to inspect the
Executive's personal computer(s) and other personal data collection or
storage device(s) at any time in order to permit the Company to
determine the Executive's compliance with the provisions of the
immediately preceding sentence. The obligations of the Executive set
forth in this Section 10.3 apply to, and are intended to prevent, the
direct or indirect disclosure of any Confidential Information or Trade
Secrets to Persons where such disclosure of the Confidential
Information or the Trade Secrets would reasonably be considered to be
useful to the Company's or its Affiliates' competitors or to any other
Person to become a competitor based, in whole or in part, on such
Confidential Informat6ion or Trade Secrets. Immediately upon the
termination of the Executive's employment by the Company for any
reason, the Executive shall deliver to the Company all Confidential
Information and Trade Secrets and all Company property then in his
possession.
10.4 Independent Agreements. The covenants set forth in Section 10.3
above shall be construed as an agreement independent of any other
provision contained in this Agreement, and the existence of any claim
or cause of action, whether predicated upon this Agreement or
otherwise, against the Company shall not constitute a defense to the
enforcement by the Company of any of such covenants. The Executive
acknowledges that the Company has fully performed all obligations
entitling it to the benefit of the covenants set forth in Section 10.3
above, and that such covenants, therefore, are not executory or
otherwise subject to rejection under the Bankruptcy Code of 1978.
10.5 Assignment of Works. The Executive assigns to the Company or its
assigns all of the Executive's right, title and interest in and to all
developments, inventions and ideas made, conceived or reduced to
practice solely or jointly by the Executive while engaging in
activities within the scope of his employment by the Company,
regardless of whether any of such developments, inventions and ideas
qualify as intellectual property or were conceived or developed during
business hours. The Executive acknowledges and agrees that all
original works of authorship that are made with the scope of his
employment by the Company and which can be legally protected are "works
for hire" under applicable law. The Executive shall notify the Company
of all developments, inventions and ideas and to take all actions
necessary to enable the Company to seek legal protection for them.
ARTICLE XI
Successor to the Company
The Company shall require any successor, whether direct or indirect,
and whether by purchase, merger, consolidation or otherwise, to all or
substantially all of the business or properties and assets of the
Company, to execute and deliver to the Executive, not later than the
date of the consummation of any such purchase, merger, consolidation or
other transaction, a written instrument in form and in substance
reasonably satisfactory to the Executive and his legal counsel pursuant
to which any such successor shall agree to assume and to perform on a
timely basis or to cause to be performed on a timely basis all of the
Company's covenants, agreements and obligations set forth in this
Agreement (a "Successor Agreement"). The failure of the Company to
cause any such successor to execute and deliver a Successor Agreement
to the Executive shall (a) constitute a breach of the provisions of
this Agreement by the Company and (b) be deemed to constitute a
termination by the Executive of his employment hereunder (as of the
date upon which any such successor shall succeed to all or
substantially all of the business or properties and assets of the
Company) for Good Reason.
ARTICLE XII
Remedies
12.1 Injunction; Specific Performance. It is recognized and
acknowledged by each of the parties that a breach or violation by the
Executive of any or all of the provisions contained in this Agreement
will cause irreparable harm and damage to the Company in a monetary
amount which would e virtually impossible to ascertain. As a result,
each of the parties recognizes and acknowledges that the Company shall
be entitled to the remedies of injunction and/or specific performance
from any court of competent jurisdiction enjoining and restraining any
breach or violation by the Executive of any or all of the provisions
contained herein and/or requiring the specific performance of any or
all of the provisions contained herein, and that such rights ot
injunction and specific performance shall be cumulative and in addition
to whatever other rights and remedies the Company may possess
hereunder, at law and in equity.
12.2 Damages; Attorneys' Fees. Nothing contained in this Agreement
shall be construed to prevent either of the parties from seeking and
recovering from the other party damages sustained by it or him as a
result of the other party's breach or violation of any or all of the
provisions hereof. If either party shall bring suit against the other
party based in whole or in part upon a breach or violation of any
provisions hereof, the, in any such event, the prevailing party in such
suit shall be awarded, and shall be paid by the non-prevailing party,
reasonable fees and disbursements of trial and appellate counsel paid,
incurred or suffered by the prevailing party in connection with such
suit.
ARTICLE XIII
Miscellaneous Provisions
13.1 Governing Law. This Agreement shall be governed by, and shall be
construed and interpreted in accordance, with the laws of the State of
North Carolina, without giving effect to the principles of the conflict
of laws thereof.
13.2 Notices. Any and all notices and other communications required
or permitted to be given pursuant to this Agreement shall be in writing
and shall be deemed to have been duly given (a) when delivered by hand;
(b) two days after having been delivered to Federal Express, DHL, UPS,
Airborne or another recognized overnight courier or delivery service,
(c) when delivered by facsimile transmission, provided that an original
copy of such transmission shall be sent by first class mail, postage
prepaid, or (d) five days after having been deposited into the United
States mail, by registered or certified mail, return receipt requested,
postage prepaid, to the respective parties at their respective
addresses or to their respective facsimile telephone numbers, as
follow:
If to the Company: Xxxx Xxxxxxx Racing Adventure, Inc.
0000 Xxxxx Xxxxxx Xxxx XX
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxx, Vice President
If to the executive: The home address for the Executive set forth in
the Company's records
Or such other address as any party may from time to time give written
notice of to the other pursuant to the provisions of this Section 13.2.
It is specifically understood and agreed by the parties that any notice
or other communications given by telephone, email, texting, twittering
or any other form or forms of communication not specifically permitted
by subsections (a), (b), (c), or (d) of this Section 13.2 shall not be
deemed to be properly delivered for purposes of this Agreement and
shall, therefore, be ineffective.
13.3 Entire Agreement. This Agreement constitutes the entire
agreement between the Company and the Executive with respect to the
subject matter hereof and supersedes all prior agreements,
understandings, negotiations and arrangements, both oral and written,
between the Company and the Executive with respect to such subject
matter. Without limiting the generality of the immediately preceding
sentence, the Previous Employment Agreement is terminated and shall
hereafter be of no further force or effect.
13.4 Amendments. This Agreement may not be amended or modified in any
manner, except by a written instrument executed by each of the Company
and the Executive.
13.5 Benefits; Binding Effect. This Agreement shall be for the
benefit of, and shall be binding upon, each of the Company and the
Executive and their respective heirs, personal representatives,
executors, legal representatives, and assigns.
13.6 Severability. The invalidity of any one or more of the words,
phrases, sentences, clauses or sections contained in this Agreement
shall not affect the enforceability of the remaining portions or this
Agreement or any part hereof, all of which are inserted conditionally
on their being valid in law. Except as otherwise provided in Section
9.4 above, if any one or more of the words, phrases, sentences, clauses
or sections contained in this Agreement shall be declared invalid by
any court of competent jurisdiction, then, in any such event, this
Agreement shall be construed as if such invalid word or words, phrase
or phrases, sentence or sentences, clause or clauses, or section or
sections had not be inserted.
13.7 Jurisdiction and Venue; Service of Process; Waiver of Trial by
Jury. If any dispute or controversy shall arise between the Company
and the Executive, then such dispute or controversy may only be brought
for resolution in the United States District Court for the Western
District of North Carolina or in the appropriate state court in and for
Catawba County, North Carolina. Each of the Company and the Executive
consents to the jurisdiction and venue of such courts, and agrees that
it or he shall not contest or challenge the jurisdiction or venue of
such courts. Each of the Company and the Executive agrees that service
of any process, summons, notice or document, by United States
registered or certified mail, to its or his address set forth in or as
provided herein shall be effective service of process for any action,
suit or proceeding brought against it or him in any such court. In
recognition of the fact that the issues which would arise under this
Agreement are of such a complex nature that they could not be properly
tried before a jury, each of the Company and the Executive waives trial
by jury.
13.8 No Waivers. The waiver by either party of a breach or violation
of any provision of this Agreement by any other party shall not operate
nor be construed as a waiver of any subsequent breach or violation.
The waiver by either party to exercise any right or remedy it or he may
possess shall not operate nor be construed as a bar to the exercise of
such right or remedy by such party upon the occurrence of any
subsequent breach or violation.
13.9 Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of any or all of the provisions hereof.
13.10 Counterparts. This Agreement may be executed in any number of
counterparts and by the separate parties in separate counterparts, each
of which shall be deemed to constitute an original and all of which
shall be deemed to constitute the one and the same instrument.
13.11 Effective Date. This Agreement shall be effective for all
purposes as of July 1, 2011.
IN WITNESS WHEREOF, each of the parties has executed and delivered this
Agreement on the date first written above.
Xxxx Xxxxxxx Racing Adventure, Inc.
By: /s/Xxxxx Xxxxxxx By: /s/Xxxxxxx X. Xxxxxxx
---------------- ---------------------
Xxxxx Xxxxxxx Xxxxxxx X. Xxxxxxx
Vice President
