PERSONAL SERVICES AGREEMENT
This
Personal Services Agreement (the “Agreement”)
is
entered into this 18th day of May, 2007, by and between Xxxxx Xxxxxxx Racing
Stables, Inc., a Nevada corporation (the “Company”)
with
its principal place of business at 000 Xxxxx, Xxxxx Xxxx, XX 00000 and Xxxx
Xxxxxxx, (“Executive”)
to be
effective as of June 1, 2007 (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
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 Executive Vice-President
and
Chief Operations 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
$150,000.00. Executive’s salary shall increase to $200,000 on September 1,
2007.
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.
(b) Deferred
Compensation.
Executive agrees to defer his annually salary until September 1, 2007. In the
sole discretion of the Executive, the amount of the deferred may be converted
into Common Stock at $.50 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 four 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 on the one-year anniversary
(the
"Anniversary Date") of the Effective Date, the Executive will be paid a bonus
equal to $100,000. 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 $.25
per share.
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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:
(i) 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) 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 Las Vegas, Colorado
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”);
(iv) 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;
(v) Executive
is charged with or found guilty of, or pleads guilty or nolo contendere to
a
felony or a crime involving moral turpitude;
(vi) 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;
(vii) 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;
(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:
(
i) 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;
(ii) 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;
(iii) 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;
(iv) 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
(v) 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.
“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 not be entitled to any further payments except (i) then current
Base Salary pursuant to Section 2(a) through the date of death or disability
and
unreimbursed expenses to the date of death or disability as provided herein,
and
(ii) any accrued compensation and benefits as provided in Section
2.
(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.
000
Xxxxx, 00xx
Xxxxx
Xxxxx
Xxxx, XX 00000
and
to
Executive at:
Xxxxx
Xxxxxxx Racing Stables, Inc.
000
Xxxxx, 00xx
Xxxxx
Xxxxx
Xxxx, 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/
J. Xxxx Xxxxx
Title:
Incorporator
|
Executive:
Xxxx
Xxxxxxx
/s/
Xxxx Xxxxxxx
|
