PERSONAL SERVICES AGREEMENT
This
Personal Services Agreement (the
“Agreement”) is entered
into this 31st day of January, 2008, by and between Xxxxx Xxxxxxx Racing
Stables, Inc., a Nevada corporation (the “Company”) with its principal
place of business at 0000 Xxx Xxxx, X-000, Xxx Xxxxxxxx, XX 00000 and J. Xxxx
Xxxxx, (“Executive”) to
be effective as of February 1, 20078(the “Effective Date”).
PREMISES
WHEREAS,
the Company desires
to employ Executive pursuant to the terms and conditions and for the
consideration set forth in this Agreement and Executive desires to enter the
employ of the Company pursuant to such terms and conditions and for such
consideration;
WHEREAS,
the Company and
Employee have entered into a previous employment agreement dated June 1, 2007
and desire this Agreement shall supersede all previous agreements;
WHEREAS,
the provisions of
this Agreement are a condition of Executive being employed by Company, of
Executive’s having access to confidential business and technological
information, and of Executive’s being eligible to receive certain benefits of
the Company. This Agreement is entered into, and is reasonably
necessary, to protect confidential information and customer relationships to
which Executive may have access, and to protect the goodwill and other business
interests of the Company; and
WHEREAS,
the provisions of
this Agreement are also a condition to Executive’s agreement to provide personal
services to the Company.
NOW
THEREFORE, in
consideration of the mutual promises and covenants agreed to herein, the receipt
and sufficiency of which are hereby acknowledged, the Company and Executive
agree as follows:
AGREEMENT
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1.
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Position,
Term,
Duties, Responsibilities.
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(a)
Position. Executive
shall be employed by the Company as its Chief Executive Officer to act in
accordance with the terms and conditions hereinafter set forth. Additionally,
during the Employment Period, the Company agrees that it shall recommend to
the
Board the election of the Employee as a Director of the Company on the
Commencement Date or as soon as practical thereafter. Upon the
expiration of his term as a Director during the Employment Period, the Company
agrees to use its best efforts to cause him to be re-nominated for election
and
to recommend his election.
(b)
Duties. Executive
shall faithfully and diligently render such services and perform such related
duties and responsibilities as are customarily performed by a person holding
such title and as otherwise may, from time to time, be reasonably assigned
to
Executive by the Company’s Board of Directors (the “Board”). Executive
shall comply with the provisions of this Agreement and all reasonable rules,
regulations and administrative directions now or hereafter established by the
Company.
(c)
Other
Activities. During Executive’s employment with the Company,
Executive shall devote his entire business time, attention and energies to
the
performance of his duties and functions under this Agreement; provided, however,
that nothing in this Agreement shall prevent Executive from: (i) serving as
a
director of any entity that is not a Competitive Business (as defined in Section
5(a)); (ii) managing his personal investments and affairs and the personal
investments and affairs of any of his family members; (iii) acquiring any
interest in any entity, whether or not part of a control group, that is directly
or indirectly owned or controlled, in whole or in part, by Executive and/or
one
or more members of his family, or a partnership, trust or other entity held
by
or for the benefit of Executive and/or one or more members of his family, and/or
(iv) performing any services for any entity, whether or not part of a control
group, that is directly or indirectly owned or controlled, in whole or in part,
by Executive and/or one or more members of his family, or a partnership, trust
or other entity held by or for the benefit of Executive and/or one or more
members of his family; provided, however, that any service shall be
insubstantial and shall not include any active involvement in the management
of
such entity and provided further that such entities do not constitute a
Competitive Business (as defined in Section 5(a)).
(d)
Term. This
Agreement shall be for a term beginning on the Effective Date and terminating
the earlier of (i) the date which is five (5) years from the Effective Date
(the
“Expiration Date”), or
(ii) the date on which Executive’s employment is terminated pursuant to Section
3 of this Agreement (the “Initial Term”); provided that,
unless earlier terminated pursuant to Section 3 of this Agreement, the Initial
Term shall be automatically extended for additional one-year terms (each a
“Renewal Term”) upon the
expiration of the Initial Term or any such Renewal Term unless the Board or
Executive delivers to the other at least thirty (30) days prior to the
expiration of the Initial Term or the then current Renewal Term, as the case
may
be, a written notice specifying that the term of the Executive’s employment will
not be renewed at the end of the Initial Term or such Renewal Term, as the
case
may be (the “Term Termination
Notice”). The Initial Term or, in the event that the
Executive’s employment hereunder is earlier terminated pursuant to Section 3 or
renewed as provided in this Section 1 (c), such shorter or longer period, as
the
case may be, is hereinafter called the “Term.”
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2.
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Compensation,
Bonuses
and Benefits.
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(a)
Base
Salary. During Executive’s employment with the Company, the
Company shall pay Executive a base annual salary (the “Base Salary”) of
$360,000.00.
The
Base
Salary shall be payable in accordance with the Company’s normal payroll
schedule, less all applicable tax withholdings for state and federal income
taxes, FICA and other deductions as required by law and/or authorized by
Executive. The Executive’s Base Salary shall be reviewed by the
Compensation Committee of the Board (the “Compensation Committee”) no
less frequently than annually to determine whether or not it should be changed
(if it is decreased it will be subject to the provisions of Section 3(g)
Termination for Good Reason) in light of the duties and responsibilities of
the
Executive and the performance thereof, and, if it is determined by the
Compensation Committee in its sole discretion that an increase is merited,
such
increase shall be promptly put into effect and the base salary of the Executive
as so increased shall constitute the Base Salary of the Executive for purposes
of this Agreement from and after such date. Executive’s salary shall
be deferred until the company has sufficient resources to pay Executives’
salary. Executive may at his sole discretion convert such deferred
salary at the then current market price on the date the salary is earned.
(b)
Signing
Bonus. Executive shall receive a signing bonus of $100,000
upon the signing of this Agreement. The signing bonus may be payable,
at Company’s election, at the closing market price of the Company’s Common Stock
on the previous day from the date of execution of this Agreement. If
the Company’s stock is not quoted on an exchange then the conversion shall be
$.10 per share.
(c)
Incentive Compensation
Program. During Executive’s employment with the Company,
Executive shall be entitled to participate in such incentive compensation
programs as are from time to time established and approved by the Board in
accordance with the Company’s practice for similarly situated employees.
(d)
Benefits. Executive
shall be entitled to participate in such employee benefit plans which the
Company provides or may establish from time to time for the benefit of
employees, subject to the terms of each such plan and subject to the right
of
the Company and the Board to modify, revise or eliminate such benefit plans
from
time to time in their sole discretion. Executive shall pay for the
portion of the cost of such benefits as is from time-to-time established by
the
Company as the portion of such cost to be paid by senior executives of the
Company.
(e)
Costs and
Expenses. Executive shall be entitled to reimbursement for all
ordinary reasonable out-of-pocket business expenses which are reasonably
incurred by him in the furtherance of the Company’s business, in accordance with
the policies adopted from time to time by the Company or the
Board. Executive will comply with the Company’s travel policies as
established from time to time by the Company or the Board.
(f)
Vacation. Executive
shall be entitled to eight weeks of vacation with pay each year, which shall
accrue in accordance with the Company’s practice for senior executives of the
Company. Executive will schedule vacation periods to minimize
disruption of the Company’s business.
(g) Allowances. Executive
shall be entitled to an automobile and cell phone allowance. The
amount of the allowance shall be determined by the compensation committee;
however, such amount shall not be less than $1,000 (in a combined total of
the
allowances).
(h) Retention
Bonus. If
the Executive is an active employee of the Company January 1st
of each
year while this Agreement is effective, the Executive will be paid a bonus
equal
to $200,000. If the Executive is an active employee of the Company on each
successive anniversary (the "Anniversary Date") of the Effective Date, the
Executive will be paid a bonus equal to $200,000. In the sole
discretion of the Executive, the amount of the bonus may be converted into
Common Stock at the closing price of the stock.
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3.
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Termination.
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(a)
Mutual
Agreement. Executive’s employment under this Agreement may be
terminated at any time by the mutual agreement of the Company and Executive,
expressed in writing.
(b)
Voluntary. Executive’s
employment under this Agreement may be terminated by Executive with or without
the consent of the Company by giving written notice of his/her intent to
terminate with the effective date of termination at least four weeks after
the
effective date of the notice of termination. After such notice, the
Company may accelerate the date such termination will take effect pursuant
to
this paragraph (b) without being in breach hereof.
(c)
Without
Cause. The Company may terminate Executive’s employment under
this Agreement at any time without Cause effective immediately upon delivery
of
written notice to Executive.
(d)
Disability or
Death. The Company may terminate Executive’s employment under
this Agreement upon the death or disability of Executive. For
purposes of this Agreement, Executive shall be considered disabled if he/she
is
unable to perform his/her duties under this Agreement as a result of injury,
illness or other disability for a period of 90 consecutive days, or 180 days
in
any 365 day period, and the Board reasonably determines that Executive has
been
unable to perform his/her duties for the 180 day period as a result of injury,
illness or other disability.
(e)
For Cause by the
Company. The Company may terminate Executive’s employment for
“Cause” at any time prior to the expiration of the Term effective immediately
upon delivery of written notice to Executive. For purposes of this
Agreement, “Cause” shall mean:
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(i)
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Executive
engaging in a material act of theft, embezzlement, misappropriation
of
funds or property, or fraud against, or with respect to the business,
of
the Company or any affiliate;
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(ii)
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Current
use of illegal drugs on or off the job;
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(iii)
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Executive
has been determined as a result of his/her incapacity due to physical
or
mental illness, by two physicians selected by the president of the
Los
Angeles, California chapter of the American Medical Association,
to be
unable to perform substantially and continuously the Executive’s
obligations under this Agreement for a period of three consecutive
months
or for an aggregate of six months in any 12-month period (a “Disability”);
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(iv)
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Executive
commits a breach of any material term of this Agreement and, if such
breach is capable of being cured, fails to cure such breach within
30 days
of notice of such breach;
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(v)
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Executive
is charged with or found guilty of, or pleads guilty or nolo contendere
to
a felony or a crime involving moral turpitude;
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(vi)
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As
a result of Executive’s gross negligence or willful misconduct, Executive
commits any act that causes, or knowingly fails to take reasonable
and
appropriate action to prevent, any material injury to the financial
condition or business reputation of the Company or any affiliate;
however,
this shall not apply to any act of the Company or of its affiliates
or
subsidiaries or any other employee thereof except to the extent that
such
act was committed at the direction of, or with the knowledge and
consent
of, Executive;
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(vii)
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Engaging
in any offense punishable by the termination of employment as set
forth in
the Company’s employment policies manual, as said manual is now in effect
or as said manual is amended from time to time during the term of
this
Agreement;
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(f)
Termination After
Change of Control. Executive may terminate his/her employment
within three (3) months after a Change of Control and prior to the expiration
of
the Term upon two (2) weeks prior written notice to the Company.
(g) Termination
by the Employee
with Good Reason. At the election of the Employee upon Good
Reason or otherwise, upon five business days' prior written notice of
termination employee may terminate this Agreement. For purposes of
this Agreement, "Good Reason" for termination shall be deemed to exist solely
if
the Employee terminates employment within one year after the occurrence of
any
of the following without the explicit written consent of the
Employee: (a) diminution of title, responsibilities, authority or
duties; (b) a failure to be elected to or removal from the Board; (c) a change
in work location beyond a 50 mile radius from the Employee's current location
of
employment (it being understood that foreign business travel shall not
constitute a "change in work location" for these purposes unless it averages
more than one calendar week per month outside North America), (d) the failure
of
the Company to obtain and deliver to the Employee a satisfactory written
agreement from any successor to the Company to assume and agree to perform
this
Agreement, or (e) any breach of this Agreement or any other material breach
of
this Agreement by the Company.
“Change
of Control” shall mean
the occurrence of one or more of the following:
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(
i)
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a
person (as defined in Sections 3(a)(9) and 13(d)(3) of the Securities
Exchange Act of 1934, as amended (“Exchange Act”), other
than an already existing shareholder as of the date hereof, that
have an
existing equity interest of 25% or greater, either individually or
collectively, directly or indirectly becomes the “beneficial owner” (as
defined in Rule 13d-3 promulgated pursuant to the Exchange Act) of
50% or
more of the securities or combined voting power of the Company’s
outstanding securities;
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(ii)
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a
complete liquidation or dissolution of the Company other than a
liquidation or dissolution occurring after any of the following
transactions: the merger or consolidation of the Company with an
Affiliate, the transfer of 50% or more of the Voting Stock of the
Company
to an Affiliate or Affiliates or the sale or other transfer of all
or
substantially all of the assets of the Company to an Affiliate or
Affiliates;
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(iii)
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the
sale of all or substantially all of the Company’s assets to a single
purchaser or group of affiliate purchasers, other than any Affiliate
or
Affiliates, in one or a series of related transactions;
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(iv)
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the
Company engages in a merger or consolidation with another entity
other
than an Affiliate and immediately after that merger or consolidation,
the
terms or entities which were stockholders of the Company immediately
prior
to that merger or consolidation hold, directly or indirectly, less
than
50% of the Voting Stock of the surviving entity; or
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(v)
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individuals
who were members of the Board immediately prior to any particular
meeting
of the Company’s shareholders which involves a contest for the election of
directors, fail to constitute a majority of the members of the Board
following such election.
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“Affiliate”
shall
mean any
corporation, partnership, trust or other entity of which the Company and/or
any
of its Affiliates directly or indirectly owns a majority of the outstanding
shares of any class of equity security of such corporation, partnership, trust
or other entity and any corporation, partnership, trust or other entity which
directly or indirectly owns a majority of the outstanding shares of any class
of
equity security of the Company or any of its Affiliates.
“Voting
Stock” shall mean, with
respect to a corporation, the capital stock of any class or classes of that
corporation having general voting power under ordinary circumstances, in the
absence of contingencies, to elect directors of such corporation and, with
respect to any other entity, the securities of that entity having such general
voting power to elect the members of the managing body of that entity.
(h)
Notice of
Termination. Any purported termination of employment shall be
communicated through written notice indicating the specific provision in this
Agreement relied upon. In addition, notwithstanding the termination
date specified in Executive’s notice of termination to the Company under this
Section 3, the Company may, in its sole discretion, accelerate the termination
date to any earlier date up to and including the date it received such notice
and such date shall be considered the termination date; provided however, that
the Company shall continue to pay Executive through the termination date
specified in Executive’s notice of termination.
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4.
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Payments.
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(a)
Generally. Except
as provided below, upon the termination of this Agreement for any reason, all
compensation and benefits, except benefits provided by law (e.g., COBRA health
insurance continuation benefits), will immediately cease to accrue, and all
compensation and, except as otherwise required by applicable law, benefits
accrued through the date of termination shall be paid to Executive in the manner
provided below.
(b)
Death or
Disability. If the Company terminates Executive’s employment
under this Agreement due to death or disability, under Section 3(d) titled
“Disability or Death,” Executive or her estate shall be entitled to Executive’s
then current Base Salary pursuant to Section 2(a) for a period of up to the
remaining term on this Agreement, or for a period of twelve (12) months,
whichever is greater.
(c)
Voluntary. If
the Company and Executive mutually agree to terminate Executive’s employment
under this Agreement under Section ((a), titled “Mutual Agreement,” or if
Executive terminates this Agreement under Section 3(b), titled “Voluntary,”
Executive shall not be entitled to any further payments except his/her then
current Base Salary pursuant to Section 2(a) through the date of termination
as
provided herein.
(d)
Termination after
Change of Control/Termination by the Employee with Good
Reason. If Executive terminates his/her employment for Good
Reason under Section 3(g) or upon a Change of Control under Section 3(f), or
then: (i) the Company shall pay to Executive the monthly amount of Executive’s
then current Base Salary pursuant to Section 2(a) for a period of up to the
remaining term on this Agreement, or for a period of twelve (12) months,
whichever is greater; (ii) if the Executive elects continued coverage
under the Company’s health plan pursuant to the Comprehensive Omnibus Budget
Reconciliation Act of 1985, as amended (“COBRA”), then the Company shall
continue to pay the Company’s portion of the premium for the Executive’s
continued coverage under the Company’s health plan until the first to occur of
(A) the date that is twelve (12) months after the date of termination and (B)
the date upon which Executive is employed by a third party; and (iii) if
Executive elects continued coverage under the Company’s life insurance plan, if
any, then the Company shall continue to pay the Company’s portion of the premium
for Executive’s continued coverage under the Company’s life insurance plan, or
if continued coverage under the Company’s life insurance plan is not available
pursuant to the terms of such plan, then the Company shall pay to Executive
the
amount of the premium that would otherwise be payable by the Company if
Executive’s employment were not terminated, until the first to occur of (A) the
date that is twelve (12) months after the date of termination, and (B) the
date
upon which Executive is employed by a third party. Thereafter,
Executive shall not be entitled to receive, and the Company shall have no
obligation to provide Executive with any additional salary, payments or benefits
of any kind.
(e)
Without
Cause. If the Company terminates Executive’s employment under
Section 3 (c) titled “Without Cause,”, then: (i) the Company shall pay to
Executive, the monthly amount of Executive’s then current Base Salary pursuant
to Section 2(a) for a period equal to the greater of (A) the remaining term
of
this Agreement, or (B) 12 months; (ii) if the Executive elects continued
coverage under the Company’s health plan pursuant to COBRA, then the Company
shall continue to pay the Company’s portion of the premium for the Executive’s
continued coverage under the Company’s health plan until the first to occur of
(A) the date that is 12 months after the date of termination and (B) the date
upon which Executive is employed by a third party; and (iii) if Executive elects
continued coverage under the Company’s life insurance plan, if any, then the
Company shall continue pay the Company’s portion of the premium for Executive’s
continued coverage under the Company’s life insurance plan, or if continued
coverage under the Company’s life insurance plan is not available pursuant to
the terms of such plan, then the Company shall pay to Executive the amount
of
the premium that would otherwise be payable by the Company if Executive’s
employment were not terminated, until the first to occur of (A) the date that
is
12 months after the date of termination and (B) the date upon which Executive
is
employed by a third party. Thereafter, Executive shall not be
entitled to receive, and the Company shall have no obligation to provide
Executive with any additional salary, payments or benefits of any kind.
(f)
Vesting of Stock
Options upon Certain Terminations. If the Company terminates
Executive’s employment under Section 3 (c), or Executive terminates his/her
employment under the provisions of Section 3(f) and/or 3(g) of this Agreement,
the Company and the Board shall cause all of Executive’s unvested stock options
to immediately vest effective as of the date his/her employment
terminates. The executive will have the greater of (i) ninety (90)
days from the date of termination, or (ii) the time period allowed under any
applicable stock option plan, to exercise his/her rights on these stock
options. The Company and Executive acknowledge and agree that in the
event of any conflict or inconsistency between the terms of any stock option
agreement previously entered into between the Company and Executive and the
terms set forth in this Section 4(f), that the terms set forth in this Section
4(f) shall control, take precedence over and otherwise be deemed to amend such
contrary or inconsistent terms as set forth in such stock option
agreements. In addition, and without limiting the terms of the
previous sentence in any way, the Company and Executive agree to formally amend
the terms of this Agreement as soon as practicable, if necessary.
(g)
Termination by
Expiration Date. In the event Executive’s employment is
terminated by the occurrence of the Expiration Date or thereafter as provided
in
Section 1(d), the Company shall have no obligation to pay Executive or provide
Executive with benefits of any kind beyond the Expiration Date or the date
specified in the Term Termination Notice, as applicable.
(h)
Date of
Termination. In each of the foregoing cases, termination is
the date of actual termination, not the date notice of termination is
given. Other than payments owing under a provision providing for
payments at a different time, all payments for accrued unpaid monthly
compensation shall be made within ten days after the end of the month following
the month in which termination occurred and all payments for reimbursement
shall
be made within 45 days after the end of the month following the month in which
termination occurred.
(i)
Miscellaneous. The
payments and obligations of the Company under this Section 4 are subject to
and
expressly made contingent upon Executive and the Company executing a mutual
release in a form mutually agreeable to the parties and not unreasonably
withheld. Executive agrees that on or prior to the termination date,
Company may convene an exit interview to review the status of accounts and
matters for which Executive has most recently been responsible to ensure that
Executive has fully obtained any entitlements which may be available under
this
Agreement and/or to confirm that Executive clearly understands the nature and
scope of all of his/her post-employment obligations.
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5.
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Non-Competition.
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(a)
Non-Compete. Executive
covenants and agrees with the Company that so long as he/she is employed by
the
Company and for a period of time which Executive receives monthly payments
from
the Company after termination of Executive’s employment by Executive under
Section 3(b) titled “Voluntary,” or by the Company under Section 3(e) titled
“For Cause,” or after termination of the Executive’s employment by Company under
Section 3 (c) titled “Without Cause,” or termination of Executive’s employment
by Executive under Section 3(f) titled “Termination After Change of Control,” or
after termination of Executive’s employment by Executive under Section 3(g)
“Termination for Good Reason,” Executive will not engage or participate,
directly or indirectly, as principal, agent, employee, employer, consultant,
advisor, sole proprietor, stockholder, partner, independent contractor, trustee,
joint venturer or in any other individual or representative capacity whatever,
in the conduct or management of, or own any stock or other proprietary interest
in, or debt of, any business organization, person, firm, partnership,
association, corporation, enterprise or other entity that shall be engaged
in
any business (whether in operation or in the planning, research or development
stage) that is a Competitive Business (as hereinafter defined), unless Executive
shall obtain the prior written consent of the Board, given in its sole
discretion, which consent shall make express reference to this
Agreement. Notwithstanding the foregoing, Executive may make passive
investments in any company whose stock is listed on a national securities
exchange or traded in the over-the-counter market so long as he/she does not
come to own, directly or indirectly, more than 5% of the equity securities
of
such company. For purposes of this Agreement, a “Competitive
Business” is a business that derives 10% or more of its revenue from markets in
which the Company provides products and/or services as of the date Executive’s
employment is terminated. This section shall not apply to those
services or functions that Executive was performing during or prior to the
Term
of this Agreement.
(b)
Non-Solicitation
of
Employees. During the Term, and for a period of at least
twelve (12) months or not less than the period that he/she receives monthly
payments from the Company (whichever is the longer period) after termination
of
Executive’s employment by Executive under Section 3(b),titled “Voluntary,” or by
the Company under Section 3(e) titled “For Cause,” or after termination of the
Executive’s employment by Company under Section 3(c) titled “Without Cause,” or
termination of Executive’s employment by Executive under Section 3(f) titled
“Termination After Change of Control,” or after termination of Executive’s
employment by Executive under Section 3(g) titled “Termination for Good Reason,”
Executive will not directly or indirectly solicit or induce, or aid any other
entity or person in soliciting or inducing, or knowingly permit any entity
directly or indirectly controlled by him/her to solicit or induce, any person
who is, or during the last three months of Executive’s employment by the Company
was, an officer, director, executive, consultant or employee of the Company
or
any of its affiliates or any of its existing or future subsidiaries to leave
the
employment or association with the Company, its affiliate or subsidiary, to
become employed or retained by any other entity or to participate in the
establishment of any other business. This section shall not include
employees that Executive has a previous relationship with and where hired within
three months of the effective date of this Agreement.
(c)
Extension of
Period. Executive agrees that if he/she acts in violation of
Sections 5 or 7 of this Agreement, the number of days that such violation exists
will be added to any period of limitations on the specific activities.
(d)
Severability. In
the event that the provisions of this Section 5 are deemed to exceed the time,
geographic or scope limitations permitted by applicable law, then such
provisions shall be reformed to the maximum time, geographic or scope
limitations, as the case may be, permitted by applicable laws.
(e)
Reasonableness of
Restrictions. Executive (i) acknowledges that his/her skills
and experience are such that he/she can anticipate finding employment at a
senior level in his/her profession, and (ii) represents and agrees that the
restrictions imposed by this Section 5 on engaging in competitive business
activities are necessary for the protection of the legitimate interests and
competitive position of the Company and do not impose undue hardships on
him.
(f)
Injunction. Executive
agrees that in addition to the remedies the Company may seek and obtain pursuant
to this Agreement, the period during which the non-compete and non-solicitation
covenants contained in this Section 5 applies shall be extended by any and
all
periods during which Executive shall be found by a court possessing personal
jurisdiction over him/her to have been in violation of the covenants contained
in this Section 5.
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6.
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Termination
Obligations of Executive.
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(a)
Return of the
Company’s Property. Executive hereby acknowledges and agrees
that all Company personal property, including, without limitation, all books,
manuals, records, reports, notes, contracts, lists and other documents, or
materials, or copies thereof, and equipment furnished to or prepared by
Executive in the course of or incident to Executive’s employment, belong to the
Company and shall be promptly returned to the Company upon termination of
Executive’s employment.
(b)
Representations,
Obligations and Warranties Survive Termination of
Employment. The representations, obligations and warranties
contained in Sections 4, 5, 6, 7, 8, 9, 10 and 17 of this Agreement shall
survive the termination of Executive’s employment with the Company.
(c)
Cooperation in Pending
Work. Executive agrees to fully cooperate with the Company in
all matters relating to the winding up of pending work in behalf of the Company
and the orderly transfer of work to other employees of the Company following
any
termination of Executive’s employment. Executive shall also
cooperative in the resolution of any dispute, including litigation of any
action, involving the Company that relates in any way to Executive’s activities
while employed by the Company.
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7.
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Confidentiality.
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(a)
Confidential
Information. Executive further recognizes that by virtue of
his/her employment relationship to Company, Executive will be granted otherwise
prohibited access to confidential, proprietary information and data of Company
which is not known either to its competitors or within the collegiate student
businesses, personal communication skills improvement businesses, and related
financial planning business generally and which has independent economic value
to Company and to its subsidiaries and affiliates (the “Confidential
Information,” as further defined in Appendix A, incorporated and included herein
specifically by this reference). Accordingly, Executive covenants
that during the term of his/her employment with the Company and thereafter
he/she will keep confidential all Confidential Information and documents
furnished to him/her by or on behalf of the Company and not use the same to
his/her advantage, except to the extent such information or documents are
lawfully obtained from other sources on a non-confidential (as to the Company)
basis or are in public domain through no fault on his/her part or is consented
to in writing by the Company.
(b)
Innovations, Patents
and Copyrights. Executive agrees to promptly disclose, in
writing, all Innovations to the Company. Executive further agrees to
provide all assistant requested by the Company, at its expense, in the
preservation of its interests in any Innovations (as hereinafter defined),
and
hereby assigns and agrees to assign to the Company all rights, title and
interest in and to all worldwide patents, patent applications, copyrights,
trade
secrets and other intellectual property rights or “Moral Rights” in any
Innovation. Furthermore, during the term of this Agreement, the
Company may, with Executive’s written permission (such permission not to be
unreasonably withheld), use Executive’s name and image as appropriate in the
conduct of its business.
“Innovations”
shall
mean all
developments, improvements, designs, original works of authorship, formulas,
processes, software, programs, databases, and trade secrets, whether or not
patentable, copyrightable or protectable as trade secrets, that Executive by
him/herself or jointly with others, creates, modifies, develops, or implements
during the period of Executive’s employment which relate in any way to any of
the Company’s lines of business. The term Innovations shall not
include Innovations developed entirely on Executive’s own time without using the
Company’s equipment, supplies, facilities or Confidential Information and, which
neither relate to the Company’s business, nor result from any work performed by
or for the Company.
8.
Alternative Dispute
Resolution. The Company and Executive mutually agree that any
controversy or claim arising out of or relating to this Agreement or the breach
thereof, or any other dispute between the parties relating in any way
to Executive’s employment with the Company or the termination of that
relationship, including disputes arising under the common law and/or any federal
or state statutes, laws or regulations, shall be submitted to mediation before
a
mutually agreeable mediator, which cost is to be borne equally by the
parties. In the event mediation is unsuccessful in resolving the
claim or controversy, such claim or controversy shall be resolved as set forth
in Paragraph 16 below. The claims covered by this Agreement
(“Arbitrable Claims”) include, but are not limited to, claims for wages or other
compensation due; claims for breach of any contract (including this Agreement)
or covenant (express or implied); tort claims; claims for discrimination
(including, but not limited to, race, sex, religion, national origin, age,
marital status, medical condition, or disability); claims for benefits (except
where an employee benefit or pension plan specifies that its claims procedure
shall culminate in an arbitration procedure different from this one); and claims
for violations of any federal, state, or other law, statute, regulation, or
ordinance, except claims excluded in the following paragraph. The
parties hereby waive any rights they may have to trial by jury in regard to
Arbitrable Claims if arbitration is selected as the method of dispute resolution
pursuant to the terms of Paragraph 16 as set forth below.
Claims
Executive or the Company may
have regarding Workers’ Compensation, unemployment compensation benefits, the
non-solicitation and non-competition provisions of this Agreement, or the
proprietary information provisions of this Agreement are not covered by this
Paragraph or the arbitration and mediation provisions of Paragraph 16 of this
Agreement as set forth below.
9.
Notices. All
notices and other communications provided for hereunder shall be in writing
and
shall be mailed by first-class, registered or certified mail, postage paid,
or
delivered personally, by overnight delivery service or by facsimile, computer
mail or other electronic means, with confirmation of receipt, addressed as
follows:
to
Company at:
Xxxxx
Xxxxxxx Racing Stables, Inc.
0000
Xxx
Xxxx, Xxx X-000
Xxx
Xxxxxxxx, XX 00000
and
to
Executive at:
J.
Xxxx
Xxxxx
0000
Xxx.
Xxxx, X-000
Xxx
Xxxxxxxx, XX 00000
Either
Party may by like notice specify
or change an address to which notices and communications shall thereafter be
sent, Notices sent by facsimile, computer mail or other electronic means shall
be effective upon confirmation of receipt, notices sent by mail or overnight
delivery service shall be effective upon receipt, and notices given personally
shall be effective when delivered.
10.
Entire
Agreement. The terms of this Agreement is intended by the
parties to be the final and exclusive expression of their agreement with respect
to the employment of Executive by the Company and may not be contradicted by
evidence of any prior or contemporaneous statements or
agreements. The parties further intend that this Agreement shall
constitute the complete an exclusive statement of its terms and that no
extrinsic evidence whatsoever may be introduced in any judicial, administrative,
or other legal proceeding involving this Agreement.
11.
Amendments,
Waivers. This Agreement may not be modified, amended, or
terminated except by an instrument in writing, signed by Executive and by a
duly
authorized representative of the Company other than Executive. No
failure to exercise and no delay in exercising any right, remedy, or power
under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, or power under this Agreement preclude
any other or further exercise thereof, or the exercise of any other right,
remedy, or power provided herein or by law or in equity.
12.
Assignment, Successors
and Assigns. Executive agrees that Executive will not assign,
sell, transfer, delegate or otherwise dispose of, whether voluntarily or
involuntarily, or by operation of law, any rights or obligations under this
Agreement, nor shall Executive’s rights be subject to encumbrance or the claims
of creditors. Any purported assignment, transfer, or delegation shall
be null and void. Subject to the foregoing, this Agreement shall be
binding upon Executive and the Company and shall inure to the benefit of the
parties and their respective heirs, legal representatives, successors, and
permitted assigns, and shall not benefit any person or entity other than those
enumerated above.
13.
Exclusion of Property
of Others. Executive covenants that he/she has not and will
not to the best of her knowledge bring to the Company or use in the performance
of her duties any documents or materials of a former employer that are not
generally available to the public or that have not been legally transferred
to
the Company.
14.
Executive’s
Authorization to Deduct Amounts Owed. Upon Executive’s
separation from employment, the Company is authorized to deduct from Executive’s
final wages or other monies due Executive any debts or amounts owed to the
Company by Executive. Upon Executive’s separation from employment,
the Company shall reimburse any deferred salary or any expense properly incurred
by Executive while employed by the Company.
15.
Severability;
Enforcement. If any provision of this Agreement, or the
application thereof to any person, place, or circumstance, shall be held by
a
court or arbitrator of competent jurisdiction to be invalid, unenforceable,
or
void, the remainder of this Agreement and such provisions as applied to other
persons, places, and circumstances shall remain in full force and effect.
16.
Arbitration;
Jurisdiction. At the option of Company, any dispute arising
out of this Agreement shall (I) be settled by binding arbitration by one
Arbitrator brought before the American Arbitration Association (“AAA”), pursuant
to the AAA rules for commercial disputes, in the State of Nevada, County of
Xxxxx, or the closest AAA office; or (ii) shall be brought by commencement
of an
action in a court of competent jurisdiction in Xxxxx County, Nevada, and such
forum shall be the exclusive forum for remedies of any such
disputes. Both parties consent to personal jurisdiction in the courts
located in Xxxxx County, Nevada. If arbitration is selected, the
arbitration shall be in accordance with the then-current Employment Dispute
Resolution Rules of the American Arbitration Association, before an arbitrator
licensed to practice law in Nevada. Either the Arbitrator or the
court, as the case may be, shall be granted all powers and shall have the
authority to grant injunctive relief or specific performance to the fullest
extent necessary to enforce the terms of this Agreement, without the necessity
of posting bond. As part of any award, the prevailing party shall be
entitled to costs and an award of reasonable attorneys fees only as expressly
provided in this Agreement. The award of any arbitration shall be
final and binding upon the parties and judgment may be entered in any court
necessary or appropriate for enforcement thereof. The terms of this
paragraph shall apply to dispute arising hereunder notwithstanding anything
to
the contrary set forth herein, and shall survive the termination of Executive’s
employment hereunder.
17.
Executive
Acknowledgment. The parties acknowledge (a) that they have
consulted with or have had the opportunity to consult with independent counsel
of their own choice concerning this Agreement, and (b) that they have read
and
understand the Agreement, are fully aware of its legal effect, and have entered
into it freely based on their own judgment and not on any representations or
promises other than those contained in this Agreement.
18.
Attorneys’
Fees. The substantially
prevailing party in any litigation,
arbitration, or other proceeding enforcing this Agreement shall be entitled
to
reimbursement of all costs and expenses including, without limitation,
reasonable attorneys’ fees at each trial and appellate level.
19.
Captions. The
captions in this Agreement are included for purposes of reference only and
are
not part of the text of this Agreement.
IN
WITNESS WHEREOF, the
parties have duly executed this Agreement as of the Effective Date.
|
Company:
Xxxxx
Xxxxxxx Racing Stables, Inc.
By:
/s/ Xxxx xxxxxxx
Xxxx
Xxxxxxx
Title:
President/COO
|
Executive:
J.
Xxxx Xxxxx
By:
/s/ J. Xxxx Xxxxx
J.
Xxxx Xxxxx
|
