Exhibit 10.18
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Employment Agreement") is made and entered into
as of the
8th Day of April, 2005 (the "Commencement Date"), by and between
Execute Sports, Inc. (the "Company"), and
Xxxxxx Xxxxxxx , an individual ("Employee").
WITNESSETH: WHEREAS, the Company under the name Execute Sports, Inc. (such
activities, together with all other activities of the Company and its
subsidiaries, if any, as conducted at or prior to the termination of this
Employment Agreement, and any future activities reasonably related thereto which
are contemplated by the Company and/or its subsidiaries at the termination of
this Employment Agreement identified in writing by the Company to Employee at
the date of such termination, are hereinafter referred to as the "Business
Activities");
WHEREAS, the Company desires to employ Employee upon the terms and subject to
the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual promises, covenants
and conditions herein contained and for other good and valuable considerations,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
intending to be legally bound hereby agree as follows:
EMPLOYMENT. The Company hereby employs Employee, and Employee hereby accepts
employment with the Company, all upon the terms and subject to the conditions
set forth in this Employment Agreement.
TERM OF EMPLOYMENT. The term of employment of Employee by the Company pursuant
to this Employment agreement shall be for the period (the "Employment Period")
commencing on the Commencement Date and ending on the two year anniversary of
the Commencement Date, or such earlier date that Employee's employment is
terminated in accordance with the provisions of this Employment Agreement;
provided however, that the Employment Period shall automatically be extended for
a successive one year period, with Employee's written consent, unless the
Company gives Employee thirty (30) days written notice prior to the end of such
year that it does not intend to extend the term of the Employment Period.
CAPACITY AND DUTIES. Employee is and shall be employed in the capacity of Chief
Executive Officer and Principal Accounting Officer ("CFO") of the Company and
its subsidiaries and shall have such other duties, responsibilities and
authorities as are assigned to him by the Board of Directors so long as such
additional duties, responsibilities and authorities are consistent with
Employee's position and level of authority as CFO of the Company. Subject to the
advice and general directions of the Board of Directors, and except as otherwise
herein provided, Employee shall devote substantially all of his business time,
best efforts and attention to promote and advance the business of the Company
and its subsidiaries and to perform diligently and faithfully all the duties,
responsibilities and obligations of Employee to be performed by her under this
Employment Agreement. Employee's duties shall include all of those duties being
performed by Employee as of the date hereof.
PLACE OF EMPLOYMENT. Employee's principal place of work shall be the corporate
headquarters of the Company, currently located in San Clemente, California,
provided that the location of the Company and its offices may be moved from time
to time in the discretion of the Board of Directors.
COMPENSATION. During the Employment Period, subject to all the terms and
conditions of this Employment Agreement and as compensation for all services to
be rendered by Employee under this Employment Agreement, the Company shall pay
to or provide Employee with the following:
1. BASE SALARY. The Company shall pay to employee a base annual salary at the
rate of $US Seventy Two Thousand ($72,000.00) dollars per annum, payable at such
intervals (at least monthly) as salaries are paid generally to other employees
of the Company.
(a) CASH BONUS. At the Board's discretion, and based upon quarterly performance
review by the Chief Executive Officer and the Board, Employee shall be eligible
to receive a bonus at the end of first year of employment, to be paid within
five business days one year after the Commencement Date.
2. STOCK. Effective upon the Commencement Date, Employee will be granted Four
Hundred Thousand (400,000) shares of the Company's restricted Common Stock. In
the event of an Approved Transaction or Control Purchase of Execute Sports,
Inc., Employee will have the right for any and all options held by Employee to
vest immediately, both upon the closing of such a Transaction or Purchase.
(a) CLAWBACK. If Employee engages in conduct which constitutes a basis for
termination WITH CAUSE by the Company, Employee agrees that any stock options
granted by the Company shall be rescinded and, upon demand by the Company, shall
be confirmed as having been rescinded. Employee and the Company agree that this
provision is subject to specific performance and gives rise to injunctive
relief.
3. VACATION AND OTHER BENEFITS. Employee shall be entitled to three (3) weeks
vacation during each calendar year. Vacation days not used during the calendar
year may not be carried into subsequent years.
(a) Health Plan. Company shall underwrite a mutually agreed upon health benefits
plan for Employee that Employee is responsible for administrating.
EXPENSES. The Company shall reimburse Employee for all reasonable, ordinary and
necessary expenses including, but not limited to, automobile and other business
travel and customer entertainment expenses) incurred by him in connection with
his employment hereunder in accordance with the written policy and guidelines
established by the Company for employee reimbursement, provided, however,
Employee shall render to the Company a complete and accurate accounting of all
such expenses in accordance with the substantiation requirements of the Internal
Revenue Code, as amended (the "Code"), as a condition precedent to such
reimbursement.
ADHERENCE TO STANDARDS. Employee shall comply with the written policies,
standards, rules and regulations of the Company from time to time established
for all executive officers of the Company consistent with Employee's position
and level of authority.
REVIEW OF PERFORMANCE. The Board of Directors shall periodically review and
evaluate the performance of Employee under this Employment Agreement with
Employee.
TERMINATION WITH CAUSE BY THE COMPANY. This Employment Agreement may be
terminated with Cause (as hereinafter defined) by the Company provided that the
Company shall:
1. Give Employee the Notice of Termination (as hereinafter defined) and
2. Pay Employee his annual base salary through the Date of Termination (as
hereinafter defined) at the rate in effect at the time the Notice of Termination
is given plus any bonus or incentive compensation which has been earned or has
become payable pursuant to the terms of any compensation or benefit plan as of
the Date of Termination, but which have not yet been paid.
TERMINATION WITHOUT CAUSE BY THE COMPANY OR FOR GOOD REASON BY EMPLOYEE. This
Employment Agreement may be terminated by the Company:
1. At the end of the Term of Employment,
2. During the Term of Employment without cause as hereinafter defined, or
3. By reason of the death or Disability Reason (as hereinafter defined) provided
that the Company shall continue to pay to Employee (or the estate of Employee in
the event of termination due to the death of employee) the compensation and
other benefits described in the Section entitled Compensation of this Employment
Agreement, except for annual cash bonuses or incentive compensation for six (6)
months from the Date of Termination. Employee's right to terminate his
employment for Good Reason shall not be affected by his incapacity due to
physical or mental illness. In the event of termination by the Company by reason
of Employee's death or Disability, medical, hospitalization or disability
benefits coverage comparable to that provided by the company during Employee's
lifetime shall be provided to Employee, his spouse and dependents for six (6)
months from the Date of Termination, and for six (6) months from the Date of
Termination with respect to medical and hospitalization benefits for the
Employee and his family. The benefits provided under this Section shall be no
less favorable to Employee in terms of amounts, deductibles and costs to him, if
any, than such benefits provided by the Company to him and shall not be
interpreted so as to limit any benefits to which Employee, as a terminated
employee of the Company, or his family may be entitled under the Company's life
insurance, medical, hospitalization or disability plans following his Date of
Termination or under applicable law.
In the event of Termination by the Employee for Good Reason, the Company shall
continue to pay to Employee the compensation and other benefits described in the
Section entitled Compensation of this Employment Agreement, except for annual
cash bonuses or incentive compensation for two (2) months from the Date of
Termination, and shall continue to provide medical, hospitalization or
disability benefits coverage to Employee, his spouse and dependents for two (2)
months from the Date of Termination.
In the event that within a period of one (1) year(s) of a Change in Control,
this Employment Agreement is terminated by the Company for any reason other than
for cause (or the Company gives notice that it is not renewing the Employment
Agreement pursuant to the Section entitled Term Of Employment), the Company
shall continue to pay to Employee the compensation and other benefits described
in the Section entitled Compensation of this Employment Agreement, except for
annual cash bonuses or incentive compensation for six (6) months from the Date
of Termination, and shall continue to provide medical, hospitalization or
disability benefits coverage to Employee, his spouse and dependents for a period
of six (6) months from the Date of Termination.
DEFINITIONS. In addition to the words and terms elsewhere defined in this
Employment Agreement, certain capitalized words and terms used in this
Employment Agreement shall have the meanings given to them by the definitions
and descriptions in this Section entitled Definitions unless the context or use
indicates another or different meaning or intent, and such definition shall be
equally applicable to both the singular and plural forms of any of the
capitalized words and terms herein defined. The following words and terms are
defined terms under this Employment Agreement:
1. "Disability" shall mean a physical or mental illness which, in the judgment
of the company after consultation with the licensed physician attending
Employee, impairs Employee's ability to substantially perform his duties under
this Employment Agreement as an employee and as a result of which he shall have
been absent from his duties with the Company on a full-time basis for one (1)
entire month.
2. A termination with "Cause" shall mean a termination of this Employment
Agreement by reason of a good faith determination by the Board that Employee:
(a) Failed to substantially perform his duties with this Company (other than a
failure resulting from his incapacity due to physical or mental illness) after a
written demand for substantial performance has been delivered to him by the
Board, which demand specifically identifies the manner in which the Board
believes he has not substantially performed his duties;
(b) Has engaged in conduct the consequences of which are materially adverse to
the company, monetarily or otherwise; or
(c) Has materially breached the terms of this Employment Agreement. No act, or
failure to act, on Employee's part shall be grounds for termination with Cause
unless he has acted or failed to act with an absence of good faith or without a
reasonable belief that his action or failure to act was in or at least not
opposed to the best interests of the Company. Employee shall not be deemed to
have been terminated with cause unless there shall have been delivered to
Employee a letter setting forth the reasons for the Company's termination of the
Employee with cause.
3. "Good Reason" shall mean the occurrence of any of the following events
without Employee's prior express written consent:
(a) Any material change in Employee's status, title, authorities or
responsibilities under this Employment Agreement which represents a demotion
from such status, title, position or responsibilities which are materially
inconsistent with his status, title, position or work responsibilities set forth
in this Employment Agreement, or any removal of Employee from, or failure to
appoint, elect, reappoint or reelect Employee to, any of such positions, except
in connection with the termination of his employment with Cause, or as a result
of his death or Disability, provided, however, that no change in title,
authorities or responsibilities customarily attributable solely to the Company
ceasing to be a publicly traded corporation shall constitute Good Reason
hereunder;
(b) The failure by the Company to continue in effect any incentive, bonus or
other compensation plan in which Employee participates, unless an equitable
arrangement (embodied in an ongoing substitute or alternative plan) has been
made with respect to the failure to continue such plan, or the failure by the
Company to continue Employee's participation therein, or any action by the
Company which would directly or indirectly materially reduce his participation
therein or reward opportunities thereunder; provided, however, that Employee
continues to meet all eligibility requirements thereof;
(c) The failure by the Company to continue in effect any employee benefit plan
(including any medical, hospitalization, life insurance or disability benefit
plan in which Employee participates), or any material fringe benefit or
prerequisite enjoyed by him unless an equitable arrangement (embodied in an
ongoing substitute or alternative plan) has been made with respect to the
failure to continue such plan, or the failure by the Company to continue
Employee's participation therein, or any action by the Company which would
directly or indirectly materially reduce his participation therein or reward
opportunities thereunder, or the failure by the Company to provide him with the
benefits to which he is entitled under this Employment Agreement; provided,
however, that Employee continues to meet all eligibility requirements thereof;
(d) Any other material breach by the Company of any provision of this Employment
Agreement;
(e) The failure of the Company to obtain a satisfactory agreement from any
successor or assign of the Company to assume and agree to perform this
Employment Agreement, as contemplated in the Section entitled Indemnification
Agreement hereof;
(f) Any purported termination of employee's employment which is not effected
pursuant to a Notice of Termination satisfying the requirements of this
Employment Agreement; and for purposes of this Employment Agreement, no such
purported termination shall be effective; or
(g) Any Change of Control (as defined herein) of the Company.
4. Change of Control. "Change of Control" shall be deemed to have occurred when:
(a) Securities of the Company representing 50% or more of the combined voting
power of the Company's then outstanding voting securities are acquired pursuant
to a tender offer or an exchange offer by a person or entity which is not a
wholly-owned subsidiary of the Company or any of its affiliates;
(b) A merger or consolidation is consummated in which the Company is a
constituent corporation and which results in less than 50% of the outstanding
voting securities of the surviving or resulting entity being owned by the then
existing stockholders of the Company;
(c) A sale is consummated by the Company of substantially all of the Company's
assets to a person or entity which is not a wholly-owned subsidiary of the
Company or any of its affiliates; or
(d) During any period of two consecutive years, individuals who, at the
beginning of such period, constituted the Board cease, for any reason, to
constitute at least a majority thereof, unless the election or nomination for
election for each new director was approved by the vote of at least two-thirds
of the directors then still in office who were directors at the beginning of the
period.
5. Notice of Termination. "Notice of Termination" shall mean a written notice
which shall indicate the specified termination provision in this Employment
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Employee's
employment under the provision so indicated; provided, however, no such
purported termination shall be effective without such Notice of Termination;
provided further, however, any purported termination by the Company or by
Employee shall be communicated by a Notice of Termination to the other party
hereto in accordance with the Section entitled Notices of this Employment
Agreement.
6. Date of Termination. "Date of Termination" shall mean the date specified in
the Notice of Termination (which, in the case of a termination pursuant to the
Section entitled Termination Without Cause By The Company Or For Good Reason By
Employee of this Employment Agreement shall not be less than sixty (60) days,
and in the case of a termination pursuant to this Section, entitled Definitions,
of this Employment Agreement shall not be more than sixty (60) days, from the
date such Notice of Termination is given); provided, however, that if within
thirty (30) days after any Notice of Termination is given the party receiving
such Notice of Termination notifies the other party that a dispute exists
concerning the termination, the Date of Termination shall be the date finally
determined by either mutual written agreement of the parties or by the final
judgment, order or decree of a court of competent jurisdiction (the time for
appeal therefrom having expired and no appeal having been taken).
FEES AND EXPENSES. The Company shall pay all legal fees and related expenses
(including the costs of experts, evidence and counsel) incurred by Employee as a
result of a contest or dispute over Employee's termination of employment if such
contest or dispute is resolved in Employee's favor.
NOTICES. For the purposes of this Employment Agreement, notices and all other
communications provided for in the Employment Agreement shall be in writing and
shall be deemed to have been duly given when personally delivered or sent by
certified mail, return receipt requested, postage prepaid, or by expedited
(overnight) courier with established national reputation, shipping prepaid or
billed to sender, in either case addressed to the respective addresses last
given by each party to the other (provided that all notices to the Company shall
be directed to the attention of the Chairman with a copy to the Secretary of the
Company) or to such other address as either party may have furnished to the
other in writing in accordance herewith. All notices and communication shall be
deemed to have been received on the date of delivery thereof, or on the second
day after deposit thereof with an expedited courier service, except that notice
of change of address shall be effective only upon receipt.
|_| Company at: 0000 Xxxxxx Xxx Xxx, Xxx Xxxxxxxx, XX 00000
|_| Employee at: _________________________________________
LIFE INSURANCE. The Company may, at any time after the execution of this
Employment Agreement, apply for and procure as owner and for its own benefit,
life insurance on Employee, in such amounts and in such form or forms as the
Company may determine. Employee shall, at the request of the Company, submit to
such medical examinations, supply such information, and execute such documents
as may be required by the insurance company or companies to whom the Company has
applied for such insurance. Employee hereby represents that to his knowledge he
is in excellent physical and mental condition and is not under the influence of
alcohol, drugs or similar substance.
PRIOR EMPLOYMENT AGREEMENTS. Employee represents and warrants that Employee's
performance of all the terms of this Employment Agreement and as an employee of
the Company does not, and will not, breach any employment agreement, arrangement
or understanding or any agreement, arrangement or understanding to keep in
confidence proprietary information acquired by Employee in confidence or in
trust prior to Employee's employment by the Company. Employee has not entered
into, and shall not enter into, any agreement, arrangement or understanding,
either written or oral, which is in conflict with this Employment Agreement or
which would be violated by Employee entering into, or carrying out his
obligations under, this Employment Agreement.
PROPRIETARY INFORMATION AND INVENTIONS. Employee understands and acknowledges
that:
1. During the term of the Employee's employment under this agreement, the
Employee shall not, directly or indirectly, engage or be interested (as a
stockholder, director, officer, employee, salesperson, agent, broker, partner,
individual proprietor, lender, consultant, or otherwise), either individually or
in or through any person (whether a corporation, partnership, association, or
other entity) which engages, anywhere in the United States, in a business which
is conducted by the Company on the date of termination of his/her employment,
except that he/she may be employed by an affiliate of the Company and hold not
more than 2% of the outstanding securities of any class of any publicly held
company which is competitive with the business of the Company.
2. The Employee shall not, directly or indirectly, either during the term of the
Employee's employment under this Agreement or thereafter, disclose to anyone
(except in the regular course of the Company's business or as required by law),
or use in any manner, any information acquired by the Employee during his/her
employment by the Company with respect to any clients or customers of the
Company or any confidential or secret aspect of the Company's operations or
affairs unless such information has become public knowledge other than by reason
of actions, direct or indirect, of the Employee. Information subject to the
provisions of this paragraph shall include, without limitation:
(a) Procedures for computer access and passwords of the Company's clients and
customers, program manuals, user manuals, or other documentation, run books,
screen, file, or database layouts, systems flowcharts, and all documentation
normally related to the design or implementation of any computer programs
developed by the Company relating to computer programs or systems installed
either for customers or for internal use;
(b) Lists of present clients and customers and the names of individuals at each
client or customer location with whom the Company deals, the type of equipment
or computer software they purchase or use, and information relating to those
clients and customers which has been given to the Company by them or developed
by the Company, relating to computer programs or systems installed;
(c) Lists of or information about personnel seeking employment with or who are
employed by the Company;
(d) Prospect lists for actual or potential clients and customers of the Company
and contact persons at such actual or potential clients and customers;
(e) Any other information relating to the Company's research, development,
inventions, purchasing, engineering, marketing, merchandising, and selling.
3. The Employee shall not, directly or indirectly, either during the term of the
Employee's employment under this Agreement or for a period of one (1) year
thereafter or for six (6) months following the Termination Date if this
Employment Agreement is terminated by the Company other than with Cause or by
the Employee for Good Reason;
(a) Solicit, directly or indirectly, the services of any person who was a
full-time employee of the Company, its subsidiaries, divisions, or affiliates,
or solicit the business of any person who was a client or customer of the
Company, its subsidiaries, divisions, or affiliates, in each case at any time
during the past year of the term of the Employee's employment under this
Agreement. For purposes of this Agreement, the term "person" shall include
natural persons, corporations, business trusts, associations, sole
proprietorships, unincorporated organizations, partnerships, joint ventures, and
governments, or any agencies, instrumentalities, or political subdivisions
thereof.
(b) Induce employees of the Company to terminate their employment with the
Company or engage in any Competitive Business in the United States; provided,
however, that the ownership of the outstanding capital stock of a corporation
whose shares are traded on a national securities exchange or on the
over-the-counter market or the ownership and/or operation of a franchise under a
franchise agreement with the Company shall not be deemed engaging any
Competitive Business. "Competitive Business" shall mean any other business that
is the same as or similar to the Company concept as it exists on the date of
this Employment Agreement or on the Termination Date.
4. All memoranda, notes, records, or other documents made or composed by the
Employee, or made available to him during the term of this Agreement concerning
or in any way relating to the business or affairs of the Company, its
subsidiaries, divisions, affiliates, or clients shall be the Company's property
and shall be delivered to the Company on the termination of this Agreement or at
any other time at the request of the Company.
5.
(a) The Employee hereby assigns and agrees to assign to the Company all his
rights to and title and interest to all Inventions, and to applications for
United States and foreign patents and United States and foreign patents granted
upon such Inventions and to all copyrightable material or other works related
thereto.
(b) The Employee agrees for himself and his heirs, personal representatives,
successors, and assigns, upon request of the Company, to at all times do such
acts, such as giving testimony in support of the Employee's inventorship, and to
execute and deliver promptly to the Company such papers, instruments, and
documents, without expense to him, as from time to time may be necessary or
useful in the Company's opinion to apply for, secure, maintain, reissue, extend,
or defend the Company's worldwide rights in the Inventions or in any or all
United States patents and in any or all patents in any country foreign to the
United States, so as to secure to the Company the full benefits of the
Inventions or discoveries and otherwise to carry into full force and effect the
text and the intent of the assignment set out in this Section, Proprietary
Information And Inventions.
(c) Notwithstanding any provision of this Agreement to the contrary, the Company
shall have the royalty-free right to use in its business, and to make, have
made, use, and sell products, processes, and services to make, have made, use,
and sell products, processes, and services derived from any inventions,
discoveries, concepts, and ideas, whether or not patentable, including, but not
limited to, processes, methods, formulas, and techniques, as well as
improvements thereof and know-how related thereto, that are not inventions as
defined herein, but which are made or conceived by the Employee during his
employment by the Company or with the use or assistance of the Company's
facilities, materials, or personnel. If the Company determines that it has no
present or future interest in any invention or discovery made by the Employee
under this paragraph, the Company shall release such invention or discovery to
the Employee within Sixty (60) days after the Employee's notice in writing is
received by the Company requesting such release. If the Company determines that
it does or may in the future have an interest in any such invention or
discovery, such information will be communicated to the Employee within the
60-day period described above.
(d) For purposes of this Section, Proprietary Information And Inventions,
"Inventions" means inventions, discoveries, concepts, and ideas, whether
patentable or not, including, but not limited to, processes, methods, formulas,
and techniques, as well as improvements thereof or know-how related thereto,
concerning any present or prospective activities of the Company with which the
Employee becomes acquainted as a result of her employment by the Company.
6. The Employee acknowledges that the agreements provided in this Section,
Proprietary Information And Inventions, were an inducement to the Company
entering into this Agreement and that the remedy at law for breach of Employee's
covenants under this Section, Proprietary Information And Inventions, will be
inadequate and, accordingly, in the event of any breach or threatened breach by
the Employee of any provision of this Section, Proprietary Information And
Inventions, the Company shall be entitled, in addition to all other remedies, to
an injunction restraining any such breach.
TRUST. Employee's employment creates a relationship of confidence and trust
between Employee and the Company with respect to certain information applicable
to the business of the Company, its subsidiaries, if any, (collectively, the
"Group") or applicable to the business of any franchisee, vendor or customer of
any of the Group, which may be made known to Employee by the Group or by any
franchisee, vendor or customer of any of the Group or learned by Employee during
the employment Period.
REMEDIES. Employee acknowledges and agrees that the Company's remedy at law for
a breach or a threatened breach of the provisions herein would be inadequate,
and in recognition of this Fact, in the event of a breach or threatened breach
by Employee of any of the provisions of this Employment Agreement, it is agreed
that the Company shall be entitled to, equitable relief in the form of specific
performance, a temporary restraining order, a temporary or permanent injunction
or any other equitable remedy which may then be available, without posting bond
or other security. Employee acknowledges that the granting of a temporary
injunction, a temporary restraining order or other permanent injunction merely
prohibiting Employee from engaging in any Business Activities would not be an
adequate remedy upon breach or threatened breach of this Employment Agreement,
and consequently agrees upon any such breach or threatened breach to the
granting of injunctive relief prohibiting Employee from engaging in any
activities prohibited by this Employment Agreement. No remedy herein conferred
is intended to be exclusive of any other remedy, and each and every such remedy
shall be cumulative and shall be in addition to any other remedy given hereunder
now or hereinafter existing at law or in equity or by statute or otherwise.
SUCCESSIVE EMPLOYMENT NOTICE. Within five (5) business days after the
Termination Date, Employee shall provide notice to the Company of Employee's
next intended employment. If such employment is not known by employee at such
date, Employee shall notify the Company immediately upon determination of such
information. Employee shall continue to provide the company with notice of
employee's place and nature of employment and any change in place or nature of
employment during the period ending:
1. Two (2) years after the Termination Date if this Employment Agreement is
terminated by the Company for Cause or by the Employee other than for Good
Reason or
2. Six (6) months after the Termination Date if this Employment Agreement is
terminated by the company other than for Cause or by the Employee for Good
Reason.
Failure of Employee to provide the company with such information in an accurate
and timely fashion shall be deemed to be a breach of this Employment Agreement
and shall entitle the Company to all remedies provided for in this Employment
Agreement as a result of such breach.
SUCCESSORS. This Employment Agreement shall be binding on the Company and any
successor to any of its businesses or assets. Without limiting the effect of the
prior sentence, the Company shall use its best efforts to require any successor
or assign (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to expressly assume and agree to perform this Employment Agreement in
the same manner and to the same extent that the Company would be required to
perform it if no such succession or assignment had taken place. As used in this
Employment Agreement, "Company" shall mean the Company as hereinbefore defined
and any successor or assign to its business and/or assets as aforesaid which
assumes and agrees to perform this Employment Agreement or which is otherwise
obligated under this Agreement by the first sentence of this Section, entitled
Successors, by operation of law or otherwise.
INDEMNIFICATION AGREEMENT. Upon the execution of this Employment Agreement, the
Company and employee shall each execute and deliver to the other an
Indemnification Agreement dated as of the date hereof.
BINDING EFFECT. This Employment Agreement shall inure to the benefit of and be
enforceable by Employee's personal and legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If
Employee should die while any amounts would still be payable to him hereunder if
he had continued to live, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Employment Agreement to
Employee's estate.
MODIFICATION AND WAIVER. No provision of this Employment Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by Employee and such officer as may be
specifically designated by the Board. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Employment Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
HEADINGS. Headings used in this Agreement are for convenience only and shall not
be used to interpret or construe its provisions.
WAIVER OF BREACH. The waiver of either the Company or Employee of a breach of
any provision of this Employment Agreement shall not operate or be construed as
a waiver of any subsequent breach by either the Company or Employee.
AMENDMENTS. No amendments or variations of the terms and conditions of this
Employment Agreement shall be valid unless the same is in writing and signed by
all of the parties hereto.
SEVERABILITY. The invalidity or unenforceability of any provision of this
Employment Agreement, whether in whole or in part, shall not in any way affect
the validity and/or enforceability of any other provision contained herein. Any
invalid or unenforceable provision shall be deemed severable to the extent of
any such invalidity or unenforceability. It is expressly understood and agreed
that while the Company and Employee consider the restrictions contained in this
Employment Agreement reasonable for the purpose of preserving for the Company
the good will, other proprietary rights and intangible business value of the
Company, if a final judicial determination is made by a court having
jurisdiction that the time or territory or any other restriction contained in
this Employment Agreement is an unreasonable or otherwise unenforceable
restriction against Employee, the provisions of such clause shall not be
rendered void but shall be deemed amended to apply as to maximum time and
territory and to such other extent as such court may judicially determine or
indicate to be reasonable.
GOVERNING LAW. This Employment Agreement shall be construed and enforced
pursuant to the laws of the State of California.
ARBITRATION. Any controversy or claim arising out of or relating to this
Employment Agreement or any transactions provided for herein, or the breach
thereof, other than a claim for injunctive relief shall be settled by
arbitration in accordance with the commercial Arbitration Rules of the American
Arbitration Association (the "Rules") in effect at the time demand for
arbitration is made by any party. The evidentiary and procedural rules in such
proceedings shall be kept to the minimum level of formality that is consistent
with the Rules. One arbitrator shall be named by the Company, a second shall be
named by Employee and the third arbitrator shall be named by the two arbitrators
so chosen. In the event that the third arbitrator is not agreed upon, he or she
shall be named by the American Arbitration Association. Arbitration shall occur
in San Diego, California or such other location agreed to by the Company and
Employee. The award made by all or a majority of the panel of arbitrators shall
be final and binding, and judgment may be entered in any court of law having
competent jurisdiction. The award is subject to confirmation, modification,
correction, or vacation only as explicitly provided in Title 9 of the United
States Code. The prevailing party shall be entitled to an award of pre- and
post-award interest as well as reasonable attorneys' fees incurred in connection
with the arbitration and any judicial proceedings related thereto.
EXECUTIVE OFFICER STATUS. Employee acknowledges that he may be deemed to be an
"executive officer" of the Company for purposes of the Securities Act of 1993,
as amended (the "1933 Act"), and the Securities Exchange Act of 1934, as amended
(the "1934 Act") and, if so, he shall comply in all respects with all the rules
and regulations under the 1933 Act and the 1934 Act applicable to him in a
timely and non-delinquent manner. In order to assist the company in complying
with its obligations under the 1933 Act and 1934 Act, Employee shall provide to
the Company such information about Employee as the Company shall reasonably
request including, but not limited to, information relating to personal history
and stockholdings. Employee shall report to the General Counsel of the Company
or other designated officer of the Company all changes in beneficial ownership
of any shares of the Company Common Stock deemed to be beneficially owned by
Employee and/or any members of Employee's immediate family.
PRONOUNS. All pronouns and any variations thereof shall be deemed to refer to
the masculine, feminine, neuter, singular, or plural, as the identity of the
person or entity may require. As used in this agreement: (1) words of the
masculine gender shall mean and include corresponding neuter words or words of
the feminine gender, (2) words in the singular shall mean and include the plural
and vice versa, and (3) the word "may" gives sole discretion without any
obligation to take any action.
COUNTERPARTS. This Employment Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute but one document.
EXHIBITS. Any Exhibits attached hereto are incorporated herein by reference and
are an integral part of this Employment Agreement.
IN WITNESS WHEREOF, this Employment Agreement has been duly executed
by the Company and the Employee as of the date first above written.
EXECUTE SPORTS, INC.
Employee: _____________________________________ Date: ____________
Accepted by: ___________________________________
Name/Title: Xxx Xxxxxxx/President and CEO Date:____________
