This Employment Agreement is effective April 16, 2003, ("Effective Date")
between Xxxxxxxx Xxxx, ("Employee"), an individual, and Fastraxx Las Vegas
Indoor Karting LLC, a Nevada Limited Liability Company with an office in
Las Vegas, Nevada (FASTRAXX).
Whereas:
a. FASTRAXX and the Employee wish to ensure that the Company will receive
the benefit of the Employee's loyalty and service.
b. In Order to ensure that the company receives the benefit of Employee's
loyalty and service, the parties desire to enter into this formal Employment
Agreement to provide Employee with appropriate compensation arrangements and
to assure Employee of stable employment.
Now, therefore, in consideration of the premises, promises and mutual
covenants herein contained, the parties agree as follows:
1. Effective the Effective Date of this Agreement, the Company engages
the "Employee" and "Employee" agrees to accept engagement as Chief Operating
Officer of Fastraxx as follows:
(i) Employee's principal duties shall be those of strategic
planning, investor relations, fund raising and corporate
development.
(ii) Employee accepts the responsibilities of Chief Operating
Officer of FASTRAXX. Employee is subject to the superior
authority and supervision of the LLC Manager and shall report to
the LLC Manager as required by customary business practice and as
specified from time to time by the LLC Manager. Employee shall have
such authority and discretion in the conduct of the company's
business that customarily falls within the scope of the
duties of a Chief Operating Officer or as may be specifically
delegated by the LLC Manager.
2. Time and Effort: As long as FASTRAXX is current in its
compensation obligations to Employee and can reasonably be expected to
remain so, Employee shall devote the necessary utilization of time, subject
to reasonable vacation periods as specified by Section 11 of this Agreement,
to the management of FASTRAXX's business affairs, the implementation of its
strategic plan as determined by the LLC Manager and the fulfillment of his
duties and responsibilities as the Company's Operating Officer. Employee
reserves the right to accept other consulting, personal business, investment
and management duties as Employee may find necessary and appropriate during
such times that the Company is in arrears on in default of its obligations
for monthly and annual compensation provided, however, that during such times
he shall nevertheless manage his time to allow for the performance of his
duties as Chief Executive Officer with such other activities fully disclosed
in writing to FASTRAXX.
3. FASTRAXX's Authority: Employee agrees to comply with FASTRAXX's
Policies and Procedures as adopted by the Company's LLC Manager regarding
the performance of his duties and to carry out and perform those policies
and procedures with respect to his engagement. Employee shall promptly
notify FASTRAXX's CEO and LLC Manager of any objection he has to the LLC
Manager's directives and the reasons for such objection.
4. Non Competition and Confidentiality: Employee shall not, during
his employment and within two years after the termination of this
Agreement, without FASTRAXX's express written authorization, divulge to
any person or entity, any proprietary information related to the business
activity of the Company, including but not limited to the business
developments, operational procedures held by FASTRAXX, technical
developments, plans, acquisitions or activities. Employee represents
and warrants that his performance of service and duties shall not
constitute a breach of any obligation that he may have to any third party.
5 Term of Agreement: This employment agreement shall be effective as
of the Effective Date and shall terminate five years from the Effective Date.
6. Compensation: During the term of this Agreement, FASTRAXX shall
pay the following compensation to the Employee (subject to any bonus
payments or adjustments based on performance criteria established by
the LLC Manager). * The Company shall pay Employee a salary of $8,250 a
calendar month of service.
7. Fringe Benefits: Employee shall be entitled to all fringe benefits
which FASTRAXX or its subsidiaries may make available from time to time
for its executive officers who are employees. FASTRAXX shall provide
Employee with medical and dental group insurance coverage or reimbursement
for the cost thereof for Employee and his dependents. This coverage shall
begin on the Effective Date and shall continue throughout the term of this
Agreement.
8. Office and Staff: In order to enable Employee to discharge his
obligations and duties pursuant to this Agreement, FASTRAXX agrees that
it shall provide suitable office space for Employee in the Las Vegas Area,
together with all necessary and appropriate supporting staff and
secretarial assistance, equipment, stationery, books and supplies.
9 Reimbursement of Expenses: FASTRAXX will reimburse Employee for
all reasonable travel, mobile telephone, promotional and entertainment
expenses incurred in conjunction with the performance of Employee's
duties hereunder, and subject to Section 10 of this agreement with respect
to Automobile Expenses. FASTRAXX will provide Employee with an expense
advance to cover any travel expenses associated with his duties, with this
advance reconciled against duly documented travel expenses or returned to
FASTRAXX after completion of the required travel. Employee's reimbursable
expenses shall be paid promptly by FASTRAXX on presentation by Employee of
an itemized and duly documented report of such expenses. All compensation
provided in Sections 6, 7, 9 and 10 (if it is legally defined as compensation
and not the direct expense of the duties of the Employee) shall be subject
to customary withholding tax and other employment taxes, to the extent
required by law.
10. Automobile: FASTRAXX shall pay Employee a fixed amount equal to
$1,200 per month on the last day of each month during the term of this
Agreement as reimbursement to the Employee on a non-accountable basis for
all expenses incurred by the Employee for the use of his automobile for
FASTRAXX business purposes, including but not limited to depreciation,
repairs, maintenance, gasoline and insurance. Employee shall not be
entitled to any other reimbursement for the use of his vehicle for
business purposes.
11. Vacation: Employee shall be entitled to four weeks of paid vacation
per year or pro rata portion of each year of service by Employee under this
Agreement. The Employee shall be entitled to the holidays provided in
FASTRAXX's established corporate policy for employees.
12. Rights In and To Innovations, Inventions and Patents:
12.1 Description of Parties'Rights: The Employee agrees that,
with respect to any innovations, inventions and patents made by him
or FASTRAXX during the Term of this Agreement, solely or jointly
with others, (i) which are made with FASTRAXX's equipment,
supplies, facilities, trade secrets or time, or (ii) which relate
to the specific business (most particularly to the indoor karting
racing business conducted by FASTRAXX) or FASTRAXX's actual or
demonstrably anticipated research or development, or (iii) which
result from any work performed by the Employee for FASTRAXX,
such innovations, inventions and patents shall belong to FASTRAXX.
The Employee also agrees that FASTRAXX shall have the right to keep
such innovations, inventions and patents as trade secrets, if
FASTRAXX chooses.
12.2 Disclosure Requirements: For the purpose of this Agreement,
an innovation, invention or patent is deemed to have been made during
the term of this Agreement if, during such period, the innovation,
invention or patent was conceived of and first actually reduced to
practice. The Employee agrees that any patent application filed
within one year after termination of his employment, if it is
directly or exclusively related to the business of indoor karting,
shall be presumed to be related to an innovation or invention made
during the term of this Agreement unless he can provide evidence to
the contrary. In order to permit FASTRAXX to claim rights to which
it may be entitled, the Employee agrees to disclose to FASTRAXX, in
confidence, all innovations, inventions and patents which the
Employee makes during the term of this Agreement and all patent
applications filed by the Employee within one year after termination
of this Agreement.
13. Arbitration: Any disputes arising under this Agreement will be
resolved in accordance with the rules of the American Arbitration
Association as they apply in the County of Xxxxx, State of Nevada. The
decision of the Arbitrators shall be binding on all parties to this
Agreement.
14. Termination: This Agreement may be terminated in the following
manner and not otherwise:
14.1 Mutual Agreement: This Agreement may be terminated by the
written agreement of FASTRAXX and the Employee.
14.2 Voluntary Termination: Employee reserves the right, as
his option and in his sole discretion, to terminate this Agreement
and all obligations therein, subject to the obligation to provide
one hundred twenty days advance notification and cooperation as
may be required in training the person or persons selected to
carry forth his duties after termination.
14.3 Termination by Employee for Breach: Employee may, at his
option and in his sole discretion, terminate this Agreement for
(i) the material breach of FASTRAXX of the terms of this
Agreement, or (ii) any material change by FASTRAXX in the
working environment or conditions of the Employee, or any
material change in the duties or authority of the Employee
under this Agreement.
14.4 Termination by the Company for Breach: FASTRAXX may
terminate this Agreement in the event that Employee commits
gross negligence in the performance of his duties under this
Agreement or breaches his fiduciary duty to FASTRAXX, to the
LLC Manager or to FASTRAXX's owners; provided, however, thatin
the event the termination is to be by reason of Employee's gross
negligence, FASTRAXX shall give Employee written notice of specific
instances for the basis of any termination of this Agreement by
FASTRAXX pursuant to this section. Employee shall have a period of
30 days after said notice in which to cease and correct the alleged
gross negligence before FASTRAXX may terminate this agreement.
If Employee ceases to commit and corrects the alleged gross
negligence within said 30 day period, FASTRAXX may not terminate
this Agreement pursuant to this section. Otherwise, FASTRAXX may
terminate this Agreement immediately upon a second notification to
Employee.
14.5 Termination Upon Death: This Agreement shall terminate upon
the death of the Employee.
14.6 Termination Upon the Disability of the Employee: This
Agreement shall terminate upon the disability of the Employee.
As used in the previous sentence, the term "disability" shall mean
the Employee's inability to effectively discharge Employee's
duties and responsibilities for a continuous period of not less
than six months during any calendar year. Any physical or mental
disability which does not prevent employee from effectively
discharging his duties and responsibilities in accordance with
usual standards of conduct as determined by FASTRAXX in its
reasonable opinion shall not constitute a disability under this
Agreement.
14.7 Termination due to a Change of Control of FASTRAXX:
If this Agreement is terminated due to a change of control of
FASTRAXX, FASTRAXX shall immediately pay Employee an amount equal
to the sum of Employee's annual salary and benefits that would be
payable to him during the year following the date of termination.
Further, Employee's unvested ownership options, if any, shall
immediately become vested, and Employee shall be entitled to
exercise all vested ownership options during the three months
following such termination. It is specifically agreed that in
such event Employee shall have no duty to mitigate his damages by
seeking comparable, inferior or different employment.
15. Improper Termination: If this Agreement is terminated by FASTRAXX
in any manner except specifically in accordance with Section 14.1, 14.4 or
14.7 of this Agreement, then (i) FASTRAXX shall immediately pay to the
Employee an amount equal to the sum of Employee's annual salary and benefits
that would be payable to him during the year following the date of
termination. Further, Employee's unvested ownership options shall
immediately become vested, and Employee shall be entitled to exercise all
vested ownership options during the three months following such termination.
It is specifically agreed that in such event Employee shall have no duty to
mitigate his damages by seeking comparable, inferior or different employment.
16. Indemnification of Employee: Pursuant to the provisions and subject
to the limitations of the Nevada Law, FASTRAXX shall indemnify and hold
Employee harmless as provided in Sections 16.1, 16.2 and 16.3 of this
Agreement. FASTRAXX shall, upon the request of the Employee, assume the
defense and directly bear all of the expense of any action or proceedings,
which may arise for which Employee is entitled to indemnification pursuant
to this Section.
16.1 Indemnification of Employee for Actions by Third Parties:
FASTRAXX hereby agrees to indemnify and hold Employee harmless from
any liability, claims, fines, damages, losses, expenses, judgments
or settlements actually incurred by him, including but not limited
to reasonable attorney's fees and costs actually incurred by him as
they are incurred, as a result of Employee being made at any time
a party to, or being threatened to be made a party to, any
proceeding (other than action by or in the right of FASTRAXX, which
is addressed in 16.2 of this Agreement), relating to actions
Employee takes within the scope of his employment as the Chief
Operating Officer of FASTRAXX or in his role as a member of the
Company, provided that Employee acted in good faith and in a manner
he reasonably believed to be in the best interest of FASTRAXX and,
in the case of a criminal proceeding, had no reasonable cause to
believe his conduct was unlawful.
16.2 Indemnification of Employee for Actions in the Right of
FASTRAXX: FASTRAXX hereby agrees to indemnify and hold Employee
harmless from any liability, claims, damages, losses, expenses,
judgments, or settlements actually incurred by him, including but
not limited to reasonable attorney's fees and costs actually
incurred by him as they are incurred, as a result of Employee
being made a party to, or being threatened to be made a party to,
any proceeding by or in the right of FASTRAXX to procure a judgment
in its favor by reason of any action taken by Employee as an officer,
director of agent of FASTRAXX, provided that Employee acted in good
faith in a manner he reasonably believed to be in the best interests
of FASTRAXX and its owners, and provided further, that no
indemnification by FASTRAXX shall be required pursuant to this
section 16.2 (i) for acts or omissions that involve intentional
misconduct or a knowing and culpable violation of the law, (ii) for
acts or omissions that Employee believed to be contrary to the best
interests of FASTRAXX or its owners or that involve the absence of
good faith on the part of the Employee, (iii) for any transaction
from which Employee derived an improper personal benefit, (iv) for
acts or omissions that show a reckless disregard by Employee of his
duties to FASTRAXX or its owners in circumstances in which Employee
was aware, or should have been aware, in the ordinary course of
performing his duties, of a risk of serious injury to FASTRAXX or
its owners, (v)) for acts or omissions that constitute an unexcused
pattern of inattention that amounts to an abdication of Employee's
duties to the company or its owners, of (vi) for any other act of
Employee for which Employee is not permitted to be indemnified
under the Nevada Law. Furthermore, FASTRAXX has no obligation to
indemnify Employee pursuant to this Section 16.2 in any of the
following Circumstances:
A. In respect to any claim, issue or matter as to which
Employee is adjudged to be liable to FASTRAXX in the
performance of his duties to FASTRAXX and its owners,
unless and only to the extent that the court in which
such action was brought determines upon application that,
in view of all the circumstances of the case, he is fairly
and reasonably entitled to indemnity for the expenses and
then only in the amount that the court shall determine.
B. For amounts paid in settling or otherwise disposing of
a threatened or pending action without court approval.
C. For expenses incurred in defending a threatened or
pending action, which is settled or otherwise disposed of
without court approval.
16.3 Reimbursement: In the event that it is determined that
Employee is not entitled to indemnification by FASTRAXX pursuant
to Sections 16.1 or 16.2 of this Agreement, then Employee is
obligated to reimburse FASTRAXX for all amounts paid by FASTRAXX
on behalf of Employee pursuant to the indemnification provisions
of this Agreement. In the event that the Employee is successful
on the merits in the defense of any proceeding referred to in
Sections 16.1 of 16.2 of this Agreement, or any related claim,
issue or matter, then FASTRAXX will indemnify and hold Employee
harmless from all fees, costs and expenses actually incurred by
him in connection with the defense of any such proceeding, claim,
issue or matter.
17. Assignability of Benefits: Except to the extent that this provision
may be contrary to law, no assignment, pledge, collateralization or
attachment of any of the benefits under this Agreement shall be
valid or recognized by FASTRAXX. Payment provided for by this
Agreement shall not be subject to seizure for payment of any debts
or judgments against the Employee, nor shall the Employee have any
right to transfer, modify, anticipate or encumber any rights or
benefits hereunder, provided that any ownership issued by FASTRAXX
to the Employee pursuant to this Agreement shall not be subject to
Section 17 of this Agreement.
18. Director's and Officer's Liability Insurance: FASTRAXX will utilize
its best efforts in good faith to purchase director's and officer's
liability insurance for the officers and directors of FASTRAXX,
which would include the same coverage for Employee.
19. Notice: Except as otherwise specifically provided, any notices to
be given hereunder shall be deemed given upon personal delivery,
air courier or mailing thereof, if mailed by certified mail,
return receipt requested, to the following addresses (of to such
other address or addresses as shall be specified in any notice
given):
In the Case of FASTRAXX:
Fastraxx
0000 X. Xxxxxxx Xxxx. #000
Xxx Xxxxx, Xxxxxx 00000
Attn: The Board of Directors
In the Case of Employee:
Xxxxxxxx Xxxx
000 Xxxxxxxx Xxxx
Xxx Xxxxxxx, XX 00000
20. Attorney's Fees: In the event that any of the parties must resort
to legal action in order to enforce the provisions of this Agreement or to
defend such suit, the prevailing party shall be entitled to receive
reimbursement from the non - prevailing party for all reasonable attorney's
fees and all other costs incurred in commencing or defending such suit.
21. Entire Agreement: This Agreement embodies the entire understanding
among the parties and merges all prior discussions or communications among
them, and no party shall be bound by definitions, conditions, warranties,
or representations other than as expressly stated in this Agreement or as
subsequently set forth by a writing signed by duly authorized representatives
of all of the parties hereto.
22. No Oral Change Amendment: This agreement may only be changed or
modified and any provision hereof may only be waived by a writing signed by
the party against whom enforcement of any waiver, change or modification is
sought. This Agreement may be amended only in writing by the mutual consent
of the parties.
23. Severability: In the event that any provision of this Agreement shall
be void or unenforceable for any reason whatsoever, then such provision shall
be stricken and of no force and effect. The remaining provisions of this
Agreement shall, however, continue in full force and effect, and to the extent
required, shall be modified to preserve their validity.
24. Applicable Law: This Agreement shall be construed as a whole and in
accordance with its fair meaning. This Agreement shall be interpreted in
accordance with the laws of the State of Nevada, and venue for any action or
proceedings brought with respect to this Agreement shall be the County of
Xxxxx, in the State of Nevada.
25. Successors and Assignees: Each covenant and condition of this
Agreement shall inure to the benefit of and be binding upon the parties
hereto, their respective heirs, personal representatives, assignees and
successors in interest. Without limiting the generality of the foregoing
sentence, this Agreement shall be binding upon any successor to FASTRAXX
whether by merger, reorganization or otherwise.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the date first above written.
COMPANY: Fastraxx Las Vegas Indoor Karting LLC
A Nevada Limited Liability Company
By:
___________________________
Member Manager, Xxxx Xxxxxxxxx
EMPLOYEE: Xxxxxxxx Xxxx
______________________________
Employee
This Employment Agreement is effective April 16, 2003, ("Effective Date")
between Xxxxxx Xxxxx, ("Employee"), an individual, and Fastraxx Las Vegas
Indoor Karting LLC, a Nevada Limited Liability Company with an office in
Las Vegas, Nevada (FASTRAXX).
Whereas:
A. FASTRAXX and the Employee wish to ensure that the Company will receive
the benefit of the Employee's loyalty and service.
B. In Order to ensure that the company receives the benefit of Employee's
loyalty and service, the parties desire to enter into this formal Employment
Agreement to provide Employee with appropriate compensation arrangements and
to assure Employee of stable employment.
Now, therefore, in consideration of the premises, promises and mutual
covenants herein contained, the parties agree as follows:
1. Effective the Effective Date of this Agreement, the Company
engages the "Employee" and "Employee" agrees to accept engagement as
Chief Financial Officer of Fastraxx as follows:
(i) Employee's principal duties shall be those of strategic
planning, investor relations, fund raising and corporate development.
(ii) Employee accepts the responsibilities of Chief Financial
Officer of FASTRAXX. Employee is subject to the superior authority
and supervision of the LLC Manager and shall report to the LLC
Manager as required by customary business practice and as specified
from time to time by the LLC Manager. Employee shall have such
authority and discretion in the conduct of the company's business
that customarily falls within the scope of the duties of a Chief
Operating Officer or as may be specifically delegated by the LLC
Manager.
2. Time and Effort: As long as FASTRAXX is current in its compensation
obligations to Employee and can reasonably be expected to remain so, Employee
shall devote the necessary utilization of time, subject to reasonable
vacation periods as specified by Section 11 of this Agreement, to the
management of FASTRAXX's business affairs, the implementation of its
strategic plan as determined by the LLC Manager and the fulfillment of his
duties and responsibilities as the Company's Operating Officer or Chief
Executive Officer. Employee reserves the right to accept other consulting,
personal business, investment and management duties as Employee may find
necessary and appropriate during such times that the Company is in arrears on
in default of its obligations for monthly and annual compensation provided,
however, that during such times he shall nevertheless manage his time to allow
for the performance of his duties as Chief Operating Officer with such other
activities fully disclosed in writing to FASTRAXX.
3 FASTRAXX's Authority: Employee agrees to comply with FASTRAXX's
Policies and Procedures as adopted by the Company's LLC Manager regarding
the performance of his duties and to carry out and perform those policies
and procedures with respect to his engagement. Employee shall promptly
notify FASTRAXX's CEO and LLC Manager of any objection he has to the LLC
Manager's directives and the reasons for such objection.
4. Non Competition and Confidentiality: Employee shall not, during
his employment and within two years after the termination of this Agreement,
without FASTRAXX's express written authorization, divulge to any person or
entity, any proprietary information related to the business activity of the
Company, including but not limited to the business developments, operational
procedures held by FASTRAXX, technical developments, plans, acquisitions or
activities. Employee represents and warrants that his performance of
service and duties shall not constitute a breach of any obligation that he
may have to any third party.
5 Term of Agreement: This employment agreement shall be effective as
of the Effective Date and shall terminate five years from the Effective Date.
6. Compensation: During the term of this Agreement, FASTRAXX shall pay
the following compensation to the Employee (subject to any bonus payments or
adjustments based on performance criteria established by the LLC Manager).
* The Company shall pay Employee a salary of $6,250 a calendar month of
service.
7. Fringe Benefits: Employee shall be entitled to all fringe benefits
which FASTRAXX or its subsidiaries may make available from time to time for
its executive officers who are employees. FASTRAXX shall provide Employee
with medical and dental group insurance coverage or reimbursement for the
cost thereof for Employee and his dependents. This coverage shall begin
on the Effective Date and shall continue throughout the term of this
Agreement.
8. Office and Staff: In order to enable Employee to discharge his
obligations and duties pursuant to this Agreement, FASTRAXX agrees that
it shall provide suitable office space for Employee in the Las Vegas Area,
together with all necessary and appropriate supporting staff and secretarial
assistance, equipment, stationery, books and supplies.
9 Reimbursement of Expenses: FASTRAXX will reimburse Employee for all
reasonable travel, mobile telephone, promotional and entertainment expenses
incurred in conjunction with the performance of Employee's duties hereunder,
and subject to Section 10 of this agreement with respect to Automobile
Expenses. FASTRAXX will provide Employee with an expense advance to cover
any travel expenses associated with his duties, with this advance reconciled
against duly documented travel expenses or returned to FASTRAXX after
completion of the required travel. Employee's reimbursable expenses shall
be paid promptly by FASTRAXX on presentation by Employee of an itemized and
duly documented report of such expenses. All compensation provided in
Sections 6, 7, 9 and 10 (if it is legally defined as compensation and not
the direct expense of the duties of the Employee) shall be subject to
customary withholding tax and other employment taxes, to the extent
required by law.
10. Automobile: FASTRAXX shall pay Employee a fixed amount equal to
$200 per month on the last day of each month during the term of this
Agreement as reimbursement to the Employee on a non-accountable basis for
all expenses incurred by the Employee for the use of his automobile for
FASTRAXX business purposes, including but not limited to depreciation,
repairs, maintenance, gasoline and insurance. Employee shall not be
entitled to any other reimbursement for the use of his vehicle for
business purposes.
11. Vacation: Employee shall be entitled to two weeks of paid vacation
per year or pro rata portion of each year of service by Employee under this
Agreement for the first two years. Then, Employee shall be entitled to three
weeks of paid vacation per year or pro rata portion of each year of service
under this Agreement thereafter. The Employee shall be entitled to the
holidays provided in FASTRAXX's established corporate policy for employees.
12. Rights In and To Innovations, Inventions and Patents:
12.1 Description of Parties'Rights: The Employee agrees that,
with respect to any innovations, inventions and patents made by him
or FASTRAXX during the Term of this Agreement, solely or jointly with
others, (i) which are made with FASTRAXX's equipment, supplies,
facilities, trade secrets or time, or (ii) which relate to the
specific business (most particularly to the indoor karting racing
business conducted by FASTRAXX) or FASTRAXX's actual or demonstrably
anticipated research or development, or (iii) which result from any
work performed by the Employee for FASTRAXX, such innovations,
inventions and patents shall belong to FASTRAXX. The Employee also
agrees that FASTRAXX shall have the right to keep such innovations,
inventions and patents as trade secrets, if FASTRAXX chooses.
12.2 Disclosure Requirements: For the purpose of this Agreement,
an innovation, invention or patent is deemed to have been made during
the term of this Agreement if, during such period, the innovation,
invention or patent was conceived of and first actually reduced to
practice. The Employee agrees that any patent application filed
within one year after termination of his employment, if it is
directly or exclusively related to the business of indoor karting,
shall be presumed to be related to an innovation or invention made
during the term of this Agreement unless he can provide evidence to
the contrary. In order to permit FASTRAXX to claim rights to which
it may be entitled, the Employee agrees to disclose to FASTRAXX,
in confidence, all innovations, inventions and patents which the
Employee makes during the term of this Agreement and all patent
applications filed by the Employee within one year after termination
of this Agreement.
13. Arbitration: Any disputes arising under this Agreement will be
resolved in accordance with the rules of the American Arbitration Association
as they apply in the County of Xxxxx, State of Nevada. The decision of the
Arbitrators shall be binding on all parties to this Agreement.
14. Termination: This Agreement may be terminated in the following
manner and not otherwise:
14.1 Mutual Agreement: This Agreement may be terminated by the
written agreement of FASTRAXX and the Employee.
14.2 Voluntary Termination: Employee reserves the right, as
his option and in his sole discretion, to terminate this Agreement
and all obligations therein, subject to the obligation to provide one
hundred twenty days advance notification and cooperation as may be
required in training the person or persons selected to carry forth
his duties after termination.
14.3 Termination by Employee for Breach: Employee may, at his
option and in his sole discretion, terminate this Agreement for
(i) the material breach of FASTRAXX of the terms of this Agreement,
or (ii) any material change by FASTRAXX in the working environment
or conditions of the Employee, or any material change in the duties
or authority of the Employee under this Agreement.
14.4 Termination by the Company for Breach: FASTRAXX may
terminate this Agreement in the event that Employee commits gross
negligence in the performance of his duties under this Agreement or
breaches his fiduciary duty to FASTRAXX, to the LLC Manager or to
FASTRAXX's owners; provided, however, that in the event the
termination is to be by reason of Employee's gross negligence,
FASTRAXX shall give Employee written notice of specific instances
for the basis of any termination of this Agreement by FASTRAXX
pursuant to this section. Employee shall have a period of 30 days
after said notice in which to cease and correct the alleged gross
negligence before FASTRAXX may terminate this agreement. If Employee
ceases to commit and corrects the alleged gross negligence within
said 30 day period, FASTRAXX may not terminate this Agreement pursuant
to this section. Otherwise, FASTRAXX may terminate this Agreement
immediately upon a second notification to Employee.
14.5 Termination Upon Death: This Agreement shall terminate upon
the death of the Employee.
14.6 Termination Upon the Disability of the Employee: This
Agreement shall terminate upon the disability of the Employee.
As used in the previous sentence, the term "disability" shall mean
the Employee's inability to effectively discharge Employee's duties
and responsibilities for a continuous period of not less than six
months during any calendar year. Any physical or mental disability
which does not prevent employee from effectively discharging his
duties and responsibilities in accordance with usual standards of
conduct as determined by FASTRAXX in its reasonable opinion shall
not constitute a disability under this Agreement.
14.7 Termination due to a Change of Control of FASTRAXX: If this
Agreement is terminated due to a change of control of FASTRAXX,
FASTRAXX shall immediately pay Employee an amount equal to the sum
of Employee's annual salary and benefits that would be payable to
him during the year following the date of termination. Further,
Employee's unvested ownership options, if any, shall immediately
become vested, and Employee shall be entitled to exercise all
vested ownership options during the three months following such
termination. It is specifically agreed that in such event Employee
shall have no duty to mitigate his damages by seeking comparable,
inferior or different employment.
15. Improper Termination: If this Agreement is terminated by FASTRAXX
in any manner except specifically in accordance with Section 14.1, 14.4 or
14.7 of this Agreement, then (i) FASTRAXX shall immediately pay to the
Employee an amount equal to the sum of Employee's annual salary and
benefits that would be payable to him during the year following the
date of termination. Further, Employee's unvested ownership options shall
immediately become vested, and Employee shall be entitled to exercise all
vested ownership options during the three months following such termination.
It is specifically agreed that in such event Employee shall have no duty to
mitigate his damages by seeking comparable, inferior or different employment.
16. Indemnification of Employee: Pursuant to the provisions and subject
to the limitations of the Nevada Law, FASTRAXX shall indemnify and hold
Employee harmless as provided in Sections 16.1, 16.2 and 16.3 of this
Agreement. FASTRAXX shall, upon the request of the Employee, assume the
defense and directly bear all of the expense of any action or proceedings,
which may arise for which Employee is entitled to indemnification pursuant
to this Section.
16.1 Indemnification of Employee for Actions by Third Parties:
FASTRAXX hereby agrees to indemnify and hold Employee harmless from
any liability, claims, fines, damages, losses, expenses, judgments
or settlements actually incurred by him, including but not limited
to reasonable attorney's fees and costs actually incurred by him as
they are incurred, as a result of Employee being made at any time a
party to, or being threatened to be made a party to, any proceeding
(other than action by or in the right of FASTRAXX, which is addressed
in 16.2 of this Agreement), relating to actions Employee takes within
the scope of his employment as the Chief Financial Officer of FASTRAXX
or in his role as a member of the Company, provided that Employee
acted in good faith and in a manner he reasonably believed to be in
the best interest of FASTRAXX and, in the case of a criminal
proceeding, had no reasonable cause to believe his conduct was
unlawful.
16.2 Indemnification of Employee for Actions in the Right of
FASTRAXX: FASTRAXX hereby agrees to indemnify and hold Employee
harmless from any liability, claims, damages, losses, expenses,
judgments, or settlements actually incurred by him, including but
not limited to reasonable attorney's fees and costs actually incurred
by him as they are incurred, as a result of Employee being made a
party to, or being threatened to be made a party to, any proceeding
by or in the right of FASTRAXX to procure a judgment in its favor
by reason of any action taken by Employee as an officer, director of
agent of FASTRAXX, provided that Employee acted in good faith in a
manner he reasonably believed to be in the best interests of
FASTRAXX and its owners, and provided further, that no
indemnification by FASTRAXX shall be required pursuant to this
section 16.2 (i) for acts or omissions that involve intentional
misconduct or a knowing and culpable violation of the law, (ii)
for acts or omissions that Employee believed to be contrary to the
best interests of FASTRAXX or its owners or that involve the absence
of good faith on the part of the Employee, (iii) for any transaction
from which Employee derived an improper personal benefit, (iv) for
acts or omissions that show a reckless disregard by Employee of his
duties to FASTRAXX or its owners in circumstances in which Employee
was aware, or should have been aware, in the ordinary course of
performing his duties, of a risk of serious injury to FASTRAXX or
its owners, (v)) for acts or omissions that constitute an unexcused
pattern of inattention that amounts to an abdication of Employee's
duties to the company or its owners, of (vi) for any other act of
Employee for which Employee is not permitted to be indemnified under
the Nevada Law. Furthermore, FASTRAXX has no obligation to
indemnify Employee pursuant to this Section 16.2 in any of the
following Circumstances:
A. In respect to any claim, issue or matter as to which
Employee is adjudged to be liable to FASTRAXX in the
performance of his duties to FASTRAXX and its owners,
unless and only to the extent that the court in which
such action was brought determines upon application that,
in view of all the circumstances of the case, he is fairly
and reasonably entitled to indemnity for the expenses and
then only in the amount that the court shall determine.
B. For amounts paid in settling or otherwise disposing of
a threatened or pending action without court approval.
C. For expenses incurred in defending a threatened or
pending action, which is settled or otherwise disposed
of without court approval.
16.3 Reimbursement: In the event that it is determined that
Employee is not entitled to indemnification by FASTRAXX pursuant
to Sections 16.1 or 16.2 of this Agreement, then Employee is
obligated to reimburse FASTRAXX for all amounts paid by FASTRAXX
on behalf of Employee pursuant to the indemnification provisions
of this Agreement. In the event that the Employee is successful
on the merits in the defense of any proceeding referred to in
Sections 16.1 of 16.2 of this Agreement, or any related claim,
issue or matter, then FASTRAXX will indemnify and hold Employee
harmless from all fees, costs and expenses actually incurred by
him in connection with the defense of any such proceeding, claim,
issue or matter.
17. Assignability of Benefits: Except to the extent that this provision
may be contrary to law, no assignment, pledge, collateralization or
attachment of any of the benefits under this Agreement shall be valid or
recognized by FASTRAXX. Payment provided for by this Agreement shall not
be subject to seizure for payment of any debts or judgments against the
Employee, nor shall the Employee have any right to transfer, modify,
anticipate or encumber any rights or benefits hereunder, provided that any
ownership issued by FASTRAXX to the Employee pursuant to this Agreement
shall not be subject to Section 17 of this Agreement.
18. Director's and Officer's Liability Insurance: FASTRAXX will utilize
its best efforts in good faith to purchase director's and officer's
liability insurance for the officers and directors of FASTRAXX, which would
include the same coverage for Employee.
19. Notice: Except as otherwise specifically provided, any notices to
be given hereunder shall be deemed given upon personal delivery,
air courier or mailing thereof, if mailed by certified mail, return
receipt requested, to the following addresses (of to such other address
or addresses as shall be specified in any notice given):
In the Case of FASTRAXX:
Fastraxx
0000 X. Xxxxxxx Xxxx. #000
Xxx Xxxxx, Xxxxxx 00000
Attn: The Board of Directors
In the Case of Employee:
Xxxxxx Xxxxx
__________________
Henderson, NV 89______
20. Attorney's Fees: In the event that any of the parties must resort to
legal action in order to enforce the provisions of this Agreement or to
defend such suit, the prevailing party shall be entitled to receive
reimbursement from the non - prevailing party for all reasonable attorney's
fees and all other costs incurred in commencing or defending such suit.
21. Entire Agreement: This Agreement embodies the entire understanding
among the parties and merges all prior discussions or communications among
them, and no party shall be bound by definitions, conditions, warranties,
or representations other than as expressly stated in this Agreement or as
subsequently set forth by a writing signed by duly authorized
representatives of all of the parties hereto.
22. No Oral Change Amendment: This agreement may only be changed or
modified and any provision hereof may only be waived by a writing signed
by the party against whom enforcement of any waiver, change or
modification is sought. This Agreement may be amended only in writing
by the mutual consent of the parties.
23. Severability: In the event that any provision of this Agreement
shall be void or unenforceable for any reason whatsoever, then such
provision shall be stricken and of no force and effect. The remaining
provisions of this Agreement shall, however, continue in full force and
effect, and to the extent required, shall be modified to preserve their
validity.
24. Applicable Law: This Agreement shall be construed as a whole and
in accordance with its fair meaning. This Agreement shall be interpreted
in accordance with the laws of the State of Nevada, and venue for any
action or proceedings brought with respect to this Agreement shall be the
County of Xxxxx, in the State of Nevada.
25. Successors and Assignees: Each covenant and condition of this
Agreement shall inure to the benefit of and be binding upon the parties
hereto, their respective heirs, personal representatives, assignees and
successors in interest. Without limiting the generality of the foregoing
sentence, this Agreement shall be binding upon any successor to FASTRAXX
whether by merger, reorganization or otherwise.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first above written.
COMPANY: Fastraxx Las Vegas Indoor Karting LLC
A Nevada Limited Liability Company
By:
___________________________
Member Manager, Xxxx Xxxxxxxxx
EMPLOYEE: Xxxxxx Xxxxx
______________________________
Employee
