EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement") made and entered into as of
the 2nd day of June 1999, by and between VIVA GAMING & XXXXXXX.xxx INC., a
Florida corporation having its office at 200 East Las Olas Boulevard, Suite
1900, Xxxx Xxxxxxxxxx, Xxxxxxx 00000, XXX (hereinafter referred to as the
"Company"), and XXXXXX XXXXX, residing in Las Vegas, Nevada (hereinafter
referred to as "Employee").
Statement of Purpose
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WHEREAS, the Company desires to secure Employee's participation and
services in the business of the Company as President/CEO an Director and
Employee is willing to be so employed by the Company, and
WHEREAS, as considerations for employment by the Company and the
compensation to be earned and paid under such employees, the parties desire to
make certain covenants as hereinafter set forth;
NOW, THEREFORE, in consideration of the terms, provisions and
conditions of this Agreement, the parties hereto mutually consent, covenant,
represent, warrant and agree as follows:
1. Employment. The Company hereby employs Employees, and Employee
accepts said employment as President/CEO and Director. In such capacity,
employee shall perform such duties as directed by the Board of Directors (the
"Board") and shall perform the duties and have the responsibilities described in
Exhibit A, which is attached hereto and incorporated herein by reference. In the
performance of his duties hereunder, Employee shall perform his duties in
accordance with reasonable rules, regulations and instructions as may be adopted
from time to time by the Board.
2. Compensation. Subject to the terms of this Agreement the Company
agrees to compensate employee in accordance with the compensation schedule
attached hereto as Exhibit B and incorporated herein by reference.
3. Terms of Employment. Employee's employment hereunder shall commence
as of June 15, 1999 (the "Commencement Date"), and shall continue until June 15,
2002, at 11:59 p.m. (the "Initial Term") unless terminated earlier for "Cause"
as defined below or due to Employee's death. At the end of the Initial Term
hereof, this Agreement shall be automatically renewed for successive one-year
terms, unless canceled by either party by written notice of such cancellation to
the other party as least thirty (30) days prior to the end of the Initial Term
or any renewal thereof.
4. Termination for Cause by Company. The Company may terminate
Employees's employment hereunder for "Cause" upon giving Employee written notice
of such termination, said termination to be effective as of the date of such
notice. "Cause" means an act, action or series of acts or actions, which
constitute or result in:
(a) the continued failure by the Employee to substantially perform his
duties according to the terms of this Agreement after the Company has given
Employee reasonable notice of such failure and a reasonable opportunity to
correct it.
(b) the commission of a crime by Employee which constitutes a felony;
or
(c) Employee's becoming an alcoholic or addicted to habit-forming
drugs;
(d) Employee becoming disabled by reason of physical or mental
infirmity or both, thereby rendering him unable to perform satisfactorily his
duties under this Agreement, said disability to be determined on the basis of
certification by two (2) physicians duly licensed to practice medicine in the
State of Nevada or by the Board in that event Employee fails or refuses to
submit to the examination of any such physician upon the request of the Board;
or
(e) the willful or wanton misconduct of Employee which results in
material damage to the Company, its business, reputation or interest.
5. Termination For Cause By Employee. Employee may terminate this
Agreement for "Cause" at any time, effective upon delivery of written notice of
said termination to the Company. "Cause" shall mean a material or willful breach
of any of the Company's obligations under this Agreement.
6. Termination After Initial Term of Agreement. Either party may
terminate this Agreement after the Initial Term set forth in paragraph 3 upon
ninety-(90) days written notice to the other.
7. Confidentiality. Unless permitted by resolution of the Board,
Employee shall not, during the term of this Agreement or at any time thereafter,
use for his own purpose or for any purposes other than those of the Company any
intellectual property or confidential information of any kind whatsoever he may
acquire in relation to the Company's business or the business of its
subsidiaries or affiliates, and such shall be and remain the property of the
Company.
8. Severance Compensation. Employee shall be entitled to compensation
as set forth in this paragraph upon (i) the Company's termination of Employee
for any reason except for "Cause," (as defined in paragraph 4 above) within the
Initial Term or any renewal term of this Agreement or (ii) the Company's
"Constructive Termination" (as defined below) of Employee's employment within
the Initial Term or any renewal term of this Agreement. Upon such termination,
the Company shall compensate Employee as follows:
(a) If employee is terminated without cause within three years of
the commencement date of this agreement, the Employee shall receive compensation
equal to the base salary of Employee which remains unpaid for the three year
period.
The term "Constructive Termination" means and refers to an action by
the Company, without Cause, resulting in (i) a material change of Employee's
responsibilities, position (status, office, title, reporting relationships or
working conditions), authority or duties (change resulting
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from Employee's assignment to duties inconsistent with Employee's position,
duties or responsibilities in effect at the inception of Employee's
employment); or (ii) a material reduction in Employee's compensation or benefits
or (iii) failure of the Company to provide Employee with compensation, bonus,
stock options or other benefits comparable to other executives of the Company.
In the event Employee has to institute litigation to enforce this
specific paragraph 8, Employee shall be entitled to recover from the Company
Employee's reasonable attorneys fees and court costs incurred in conjunction
with such proceeding.
9. Notices. All notices and other communications hereunder must be in
writing and shall be deemed to have been duly given when delivered by hand or
mailed by registered or certified mail, return receipt requested, postage
prepaid, addressed to the parties hereto as follows:
As to Company VIVA GAMING & XXXXXXX.xxx INC.
000 Xxxx Xxx Xxxx Xxxxxxxxx
Xxxxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
As to Employee: Xxxxxx Xxxxx
0000 Xxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx 00000
10. Entire Agreement Amendments. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and may not be changed or modified orally but only by an instruction in writing
signed by the parties, which states that it is an amendment to this Agreement.
11. Choice of Law. This Agreement is made and executed in Florida and
with the intention that the construction, interpretation and validity hereof
shall be determined in accordance with and governed by the laws of the State of
Nevada.
12. Severability. Should any provision of this Agreement be held
invalid, the same shall not affect or impair any other provision of this
Agreement and the invalidity of any provision of this Agreement shall not have
any effect or impair the obligation of Company or the Employee.
13. Sections and Subheadings. Sections and subheadings inserted in this
Agreement are for convenience only and shall not be deemed to have any legal
effect whatsoever in the interpretation of this instrument.
14. Binding Effect. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, executors,
administrators, personal representatives and successors.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be signed
by its duly authorized officers and its corporate seal to be hereto, and
Employee has hereunto set his hand and seal as of the day and year first above
written.
Witnesses: VIVA GAMING & XXXXXXX.xxx INC.
/s/ Xxxx Xxxxxxxx /s/ Xxxxxx Xxx
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Director and Chairman
Vancouver, BC
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Address ATTEST:
/s/ Xxxxxxxxx Sim
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Secretary
[CORPORATE SEAL]
Witnesses: XXXXXX XXXXX
/s/ Xxxxx Xxxxxxxx 6/4/99 /s/ XXXXXX XXXXX
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Xxx Xxxxx, Xxxxxx 00000 6/4/99
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Address
000 Xxxxx Xxxxxxx, Xxx 000
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EXHIBIT A
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DUTIES AND RESPONSIBILITIES OF
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PRESIDENT/CEO and DIRECTOR
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1. Direct management of all personnel of the Company;
2. Direct supervision of all on-going and/or proposed corporate projects,
assets and revenue centers;
3. Direct negotiation responsibilities in all contractual agreements,
including but not limited to, new hires and terminations, according to
Company policy and departmental budgets;
4. Direct involvement in the Marketing and Sales activities, as required,
for the development of any and all existing or new corporate products,
assets, revenue centers and acquisitions as the case may be;
5. Direct supervision of projects contracted to independent engineering
and development sources, lawyers, accountants and auditors.
6. Procurement of specification(s) for products; development of prototype
or products; and coordination of the testing of products by authorized
laboratories for product(s) in conjunction with the Marketing and
Sales Department, Manufacturing Department, and/or the Board of
Directors of the Company.
7. Direct responsibility for analyzing cost and time involved for new
projects, businesses and/or potential acquisitions and reporting to the
Board and departmental directors involved in the project(s).
8. Responsible for delivering the plan(s), drawing(s), xxxx of material(s)
and procedure(s) along with prototype(s) of the developed product(s) to
the Manufacturing Department.
9. Coordinate the management and training of all necessary personnel for
the Company.
10. In carrying out the duties, it is understood that the company shall
allow the President/CEO to employ and use the assistance of one or more
employees who will provide help in carrying out the duties enumerated
in this schedule.
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EXHIBIT B
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COMPENSATION
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(A) Base Salary. During the Initial Term of one year of Employee's employment
under the Agreement to which this Exhibit B is attached, the Company shall pay
to Employee a base salary at an annual rate of One hundred and eighty thousand
Dollars ($180,000.00) (U.S. Dollars) (the "Base Salary"), payable in twelve (12)
equal monthly installments or at such intervals as shall be in conformity with
the Company's practice, as such practice shall be established or modified from
time to time. For any renewal term(s) of this Agreement, the base Salary will be
adjusted at the end of the 1st year subject to review of this employee's
performance by the Board.
(B) Bonus. In addition to the Base Salary, the Employee shall be
eligible for an annual bonus ("Bonus") of 1% of the gross revenues of the sales
of the Company.
(C) Withholding. All compensation paid to Employee shall be subject to
withholding and employment taxes as required by the laws of the United States
and the State of Nevada.
(D) Employee & Director Benefits. Employee shall be entitled to such
other benefits, including major medical, dental, and life insurance coverages(s)
and Director insurance, in such form and in such manner and at such times as
each is available to other employees of the Company.
(E) Vacation. Employee shall be entitled to four (4) weeks of vacation
during each twelve (12) month period of this Agreement.
(F) Reimbursement for Company Expenses. The Company shall reimburse
Employee in accordance with policies and practices then in effect for
out-of-pocket expenses incurred by the Employee in the performance of Employee's
duties hereunder.
(G) Stock Options. It is agreed that stock options will be issued to
the President/CEO and Director to be mutually agreed upon within thirty (30)
days of the signing of this Agreement.
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