EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") made and entered into
this _____ day of
__________, 2008, to be effective as of that date (the "Effective
Date"), by and
between SUNGAME CORPORATION, (the "Company") and GUY ROBERT (the
"Executive")
WITNESSETH:
WHEREAS, the Company wishes to secure the
services of the
Executive subject to the contractual terms and conditions set forth
herein; and
WHEREAS, the Executive is willing to enter into this Agreement
upon the terms and conditions, set forth herein.
NOW, THEREFORE, in consideration of the mutual
promises and
agreements set forth herein, the parties here to agree as
follows:
1. EMPLOYMENT. The Company hereby
agrees to employ the Executive, and the
Executive hereby agrees to accept such employment with the Company,
all upon the
terms and conditions set forth herein.
2. TERM OF EMPLOYMENT. Subject to the terms and
conditions of this Agreement,
the Executive shall be employed for a term of three (3) years
commencing on the
Effective Date and ending on the third (3rd)
anniversary of the Effective date
(the "Term") unless sooner terminated as provided
for herein. The Term shall
renew automatically for additional one (1) year terms, unless
either party gives
written notice no less than ninety (90) days prior to the
expiration of the Term
that it does not intend to extend the Term.
3. DUTIES AND RESPONSIBILITIES.
A. CAPACITY. During the Term, the Executive shall serve in the
capacity of the
President and Chief Executive Officer subject to
the
supervision of the
Board of Directors of the Company (the "Board")
B. FULL-TIME DUTIES. During the Term,
and excluding any
periods of
disability, vacation or sick leave to which the Executive is
entitled,
the Executive shall devote substantially all of his business
time, attention
and energies to the business of the Company. During the
Term, it
shall not be a violation of this Agreement for the
Executive
to (i) serve on
corporate, civic or charitable boards or
committees,
(ii) deliver
lectures or fulfill speaking engagements and (iii) manage
personal
investments, so long as such activities do
not materially
interfere with the
performance of the Executive's responsibilities as
an employee of the
Company in accordance with this Agreement, (iv) it
is acknowledged
that the Executive owns and serves as CEO/Chairman of a
Adversor Corp and
its affiliates. The Executive will not
allow said
activities to
impact negatively or otherwise interfere with his duties
or performance
hereunder.
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C. STANDARD OF PERFORMANCE. The Executive
will perform his
duties under this
Agreement with fidelity and loyalty, to the best of
his ability,
experience and talent and in a manner consistent with his
duties and
responsibilities.
4. COMPENSATION
A. BASE SALARY. The Company shall pay the Executive a
salary
(the "Base
Salary") of $2000 per month up until IPO listing and
$5000
until
positive cash flow and $10000 thereafter, prorated for
partial
months of
employment. The Base Salary shall be payable in
accordance
with the
general payroll practices of the Company in effect from
time
to time.
During the Term of this Agreement, the Base Salary
shall be
reviewed at
least annually by the Board after
consultation with the
Executive and may
from time to time be increased (but not decreased) as
solely
determined by the Board. Effective as of the date of
any such
increase,
the Base Salary as so increased shall be considered the
new
Base salary for
all purposes of the Agreement and may not thereafter be
reduced.
Any increase in Base Salary shall not limit
or reduce any
other obligation
of the Company to the Executive under this Agreement.
B. ANNUAL PERFORMANCE BONUS. Executive shall be
eligible for
annual
discretionary bonus awards payable in cash and/or common
stock
of the
Company, as so determined solely by
the Board, based on
performance
objectives determined annually or at other times
by the
Board. Bonus Plan
shall be established in 2006.
C. LONG TERM INCENTIVES. Upon the Execution of this Agreement,
the Company
agrees to issue the Executive the initial option award set
forth on the term
sheet attached hereto as Exhibit A.
Following the
initial
option award, the Executive shall be eligible for
grants of
stock
options, restricted stock and/or other long-term
incentives in
the
discretion of the Board on the same
basis as other similarly
situated
senior executives of the Company. In addition, in
the event
the Company
pursues additional rounds of equity financing
during the
Term,
the Executive shall be offered the option to
purchase, at the
price
offered in such financing, a
sufficient additional equity
interest such that
if the Executive exercises this purchase option, the
Executive
will maintain his proportionate ownership
interest in the
Company.
D.
BENEFITS.
(1) If and to the extent that the Company maintains
employee benefit plans (including,
but not limited to,
pension, profit-sharing, disability, accident, car
allowance
or related expenses,
medical, life insurance,
and
hospitalization plans) (it being understood that the
Company
may but shall not be obligated to do so), the Executive
shall
be
entitled to participate therein
accordance with the
Company's regular practices with respect to similarly situated
senior executives. The Company will have the right to amend or
terminate any such benefit plans it may choose to
establish.
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(2) The Executive shall be
entitled to prompt
reimbursement from the Company for reasonable
out-of-pocket
expenses incurred by him in the course of the
performance of
his duties hereunder, upon the
submission of appropriate
documentation in accordance with the practices,
policies and
procedures applicable to the other senior
executives of the
Company.
(3) The Executive shall be entitled to such vacation,
holidays and other paid or unpaid leaves of
absence as are
consistent with the Company's normal
policies available to
other senior executives of the Company or as
are otherwise
approved by the Board.
(4) The Executive shall be entitled
to have the
company pay an automobile allowance or
related automobile
expenses for actual amounts
incurred and submitted for
reimbursement but in no event less than $500 per month.
5. TERMINATION OF EMPLOYMENT.
Notwithstanding the provisions of Section 2
hereof, the Executive's
employment hereunder shall terminate under any of the following
conditions:
A. DEATH. The Executive's employment under
this Agreement
shall terminate
automatically upon his death.
B. TOTAL DISABILITY. The Company
shall have the right to
terminate this
Agreement if the Executive becomes Totally Disabled. For
purposes of this
Agreement, "totally Disabled" means that the executive
is not working and
is currently unable to perform the substantial and
material
duties of his position hereunder as a result
of sickness,
accident or
bodily injury for a period of three months.
Prior to a
determination that Executive is Totally Disabled, but
after Executive
has
exhausted all sick leave and vacation
benefits provided by the
Company, Executive
shall continue to receive his Base Salary, offset by
any disability
benefits he may be eligible to receive.
C. TERMINATION BY COMPANY FOR
CAUSE. The Executive's
employment
hereunder may be terminated for Cause upon written notice by
the Company. For
purposes of this Agreement, "Cause" shall mean:
(1) conviction of the Executive
by a court of
competent jurisdiction of any felony or a
crime involving
moral turpitude;
(2) the Executive's willful and intentional failure
or willful and intentional refusal to follow
reasonable and
lawful instructions of the Board;
(3) the Executive's material breach or default in the
performance of his obligations under this Agreement; or
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(4) the Executive's act of
misappropriation ,
embezzlement, intentional fraud or similar conduct
involving
the Company.
Executive may not be terminated for Cause pursuant to
subsections (2) and (3)
above unless Executive is given written notice of the circumstances
constituting
the "Cause" and a reasonable period to cure
such circumstances, if curable,
which period shall be no less than thirty (30) days.
D. TERMINATION FOR GOOD REASON. The
Executive's employment
hereunder may be
terminated by the Executive for Good Reason on written
notice by
Executive to the Company. For purposes of this
Agreement,
"Good
Reason" means the
occurrence of any of the
following
circumstances
without the Executive's consent:
(1) a
material reduction in the executive's salary or
benefits excluding the
substitution of substantially
equivalent compensation and benefits provided that a reduction
in the level of compensation payable to a substantial
portion
of the company's employees or
to substantially all the
Company's officers as part of a
unilateral cost-cutting
program of the Company will not be taken
into account for
acceleration or vesting;
(2) a material diminution of the Executives duties,
authority or responsibilities as in effect immediately
prior
to such diminution;
(3) the relocation of the
Executive' principal
location to a location more than 50 miles from
its current
location; or
(4) the failure of a successor to assume and perform
under this Agreement.
6. PAYMENTS UPON TERMINATION.
A. Upon Termination of Executive's employment
hereunder for
any reason as so
provided for in Section 5 hereof, the Company shall be
obligated to pay
and the Executive shall be entitled to receive, within
ten (10)
days of termination, Base Salary
which has accrued for
services
performed to the date of termination and which
has not yet
been paid. In
addition, the executive shall be entitled to one
year,
(12 months) of
severance, payment of a pro rata portion of any LTIP or
annual bonus
period partially completed, any vested benefits to
which
he is entitled
under the terms of any applicable Executive benefit plan
or program,
vested restricted stock plan and stock option plan of the
Company,
and, to the extent applicable,
short-term or long-term
disability plan or
program with respect to any disability, or any life
insurance
policies and the benefits provided by such plan, program
or
policies,
or applicable law as duly adopted from time to time by
the
Board.
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B.
Upon termination of Executive's employment by the
Company
without Cause or
by the Executive for Good Reason, the Company shall be
obligated to pay
and the Executive shall be entitled to receive:
(1) all of the
amounts and benefits described in
Section 6.A. hereof and
(2) a lump sum payment, within ten
(10) days of
termination, equal to twelve (12) months of the
Executive's
Base Salary; and
(3) continued participation in all Executive welfare
benefit programs of the Company for the remainder of the
Term
or, if longer, until the first anniversary of the
Executive's
termination of employment, as if there had been no termination
of employment.
Payments under Section 6.B., with the
exception of amounts due pursuant to
Section 6. B(1), are continued on the execution by the Executive of
a release of
all employment-related claims; provided,
however, that such release shall be
contingent upon the Company's satisfaction of all terms
and conditions of this
Section.
C. Upon termination of the Executive's
employment upon the
death of
Executive pursuant to Section 5.A., the
Company shall be
obligated to pay,
and the Executive shall be entitled to receive:
(1) all of the amounts and vested benefits described
in Section 6.A.;
(2) any death benefit payable under a plan or policy
provided by the company; and
(3) continued participation by
the Executive's
dependents in the welfare benefit programs of the Company
for
the remainder of the Term, or if
longer, until the first
anniversary of the Executive's termination of
employment, as
if there had been no termination of employment.
D. Upon termination of the Executive's employment or upon
the
Disability
of the Executive pursuant to Section 5. B.,
the Company
shall be
obligated to pay, and the Executive
shall be entitled to
receive:
(1) all of the amounts and vested benefits described
in Section 6.A.;
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(2) the Base Salary, at
the rate in effect
immediately prior to the date of his termination of employment
due to Disability, for the remainder of the Term,
offset by
any payments the Executive receives
under the Company's
long-term disability plan and any supplements thereto, whether
funded or unfunded which is adopted by the
Company for the
Executive's benefit and not attributable to the
Executive's
own contributions; and
(3) continued participation by the Executive and his
dependents in the welfare benefit programs of the Company
for
the remainder of the Term or, if
longer, until the first
anniversary of the Executive's termination of employment as if
there had been no termination of the employment.
Payments under Section 6.D., with the
exception of amounts due pursuant to
Section 6.D(1), are conditioned on
the execution by the Executive or the
Executive's representative of a release
of all employment-related claims;
provided,&
