EMPLOYMENT AGREEMENT
THIS EMPOYMENT AGREEMENT is made as____, 2000 (the "Effective Date"), by and
between Xxxxxx Industries. Inc.. a Nevada corporation (the "Company") and Xx
Xxxxx Park ("Employee") with reference to the following facts.
A. The Company desires to retain Employee as i ts President and Chief
Executive Officer, and Employee desires to serve the Company in such capacity.
B. The Company and Employee desire to set forth their agreement relating to
the terms and conditions of such employment.
NOW, THEREFORE, in consideration of the mutual covenants set forth in this
Agreement, and of other good and valuable consideration that the Company and
Employee have received and accepts as sufficient, the Company and Employee
agree as follows:
1. Employment. the Company hereby employs Employee to render exclusive and
full-time services subject to the terms and provisions of this Agreement.
Employee shall be an officer of the Company and shall have the titles
"President" and "Chief Executive Officer"
2. Acceptance of. Employment. Employee hereby accepts employment by the
Company subject to the to the terms and provisions of this Agreement, and
agrees to devote his best talents and abilities to the service of the
Company as the Company may direct during the tone hereof. It is expressly
understood and agreed that in the performance of his duties and obligations
hereunder, Employee shall at all times be subject to the control
and direction of the Board of Directors of the Company or such other person
(the "Reporting Person") as the Board of Director of the Company may
designate from time to time.
3. Term. Notwithstanding the date on which this Agreement is actually
executed by the Company and Employee or the date on which Employee is
actually elected President and Chief Employee Officer of the Company, the
term of this Agreement shall begin as of______________, 2000, and shall
continue until December 31, 2001, unless sooner terminated as hereinafter
provided.
4. Duties.
Services. Employee shall perform the duties of the President and Chief
Executive Officer of the Company. As President and Chief Executive Officer of
the Company, Employee shall be continue for performing the following duties.
4.1.1 the supervision of the Company's day-to-day business operations;
4.1.2 the development and implementation of the Company's business plan;
4.1.3 the negotiation of contractual relationships with the Company's
strategic partners and costomers;
4.1.4 the hiring of such personnel as may be necessary to implement the
Company's business plan;
4.1.5 the preparation and implementation of the Company's capital and
operating budgets: and
4.1.6 such other duties as the Reporting Person or the Board of Directors of
the Company (the "Board of Directors") may specify from time to time.
Employee shall perform his services under this Agreement within the framework
of the Company's then current business plan and budget, as approved by the
Board of Directors, and shall advise and consult with the Board of Directors
and the Reporting Person with respect to all significant personnel matters,
including hirings and terminations, and capital expenditures.
5. Compensation.
5.1 Salary. In full consideration for his performance of services under this
Agreement and in complete discharge of the Company's salary o bligations
hereunder, the Company shall pay to Employee: and Employee shall accept from
the Company the following (subject to all withholding requirements which may
be imposed by applicable federal, state or local authorities);
5.1.1 for the periods from the Effective Date through June 30, 2001, the
Company shall have no obligations to pay Employee any salary;
5.1.2 for the periods on and after June 30, 2001, the Company shall pay
Employee a reasonable salary based on the Company's revenues and cash
requirements, which salary shall be mutually acceptable to the Company
and employee;
5.1.3 reimbursement for all reasonable expenses incurred by Employee in
connection with the performance of his duties under this Agreement, provided
that such expenses are documented in accordance with the Company's normal
policies as in effect from time to time;
5.1.4 such fringe benefits (such as paid vacations and participation in
medical insurance plans and Employee benefit plans) as may be authorized
from time to time by the Board of Directors for payment or provision to
Employee; provided that in any event Employee shall be entitled to all
fringe benefits as are generally available to all executive officers of the
Company; and
5.1.5 such other benefits (if any) as may be authorized from time to time
by the Board of Directors for payment or provision to Employee; provided
that in any event Employee shall be entitled to all fringe benefits as are
generally available to all executive officers of the Company.
5.2 Bonus. Promptly after the end of cash calendar year during the terns of
this Agreement., the Company shall review Employee's performance during the
period then ended and shall determine whether the Company shall pay Employee
a bonus with respect to such period and. if so, the amount of such bonus. At
the start of each calendar year of the term of this Agreement, the Company
and Employee shall use their good faith efforts to establish the goals and
criteria for Employee's performance during the following year;
provided that neither party shall be deemed to have breached any obligation
under this Agreement solely by reason of any delay or failure to establish
any such goals or criteria. Employee acknowledges and agrees that nothing in
this Agreement or the Company's general policies shall require the Company
to pay Employee a bonus for any calendar year to pay Employee a bonus in
particular amount or to pay Employee a bonus by reason of the Company's
payment of a bonus to any other Employees of the Company.
5.3 Annual Review. At the end of each calendar year during the term of this
Agreement, the Board of Directors shall review the salary and other benefits
payable and provided to Employee under this Agreement and shall adjust such
salary and benefits effective as of the first day of the following year to
reflect Employee's performance during the just-ended period. Nothing in this
Section 5.3 shall obligate the Company to increase the salary and/or
benefits payable or provided to Employee as a result of any such review;
provided that in no event shall the Company reduce the salary or benefits
payable or provided to Employee as a result of such review.
6.Policies and Regulations. Employee shall observe, comply with and he bound
by all of the policies,rules and regulations established by the Company with
respect to its employees and otherwise, all of which are subject to change
by the Company from time to time.
7. Termination.
7.1 Termination by the Company.
7.1.1 Without Cause. The Company may terminate this Agreement at any time
without cause upon thirty (30) days prior written notice to Employee. This
Agreement shall terminate automatically at the end of such 30-day period and
the Company shall have no obligation to provide Employee any further notice
of termination.
7.1.2 With Cause The Company may terminate this Agreement for
"cause" by giving to Employee thirty (30) days prior written notice
of termination. For purposes of this Section 7.1.2, the term "cause" shall
mean and include only:
A. conviction of or confession by Employee to theft, fraud, or embezzlement
against the Company;
B. the incapacity or disability of Employee, as a result of which
Employee is prevented from fully performing Employee's services under this
Agreement for a consecutive period of sixty (60) days or longer or an
aggregate of ninety (90) days or more during any twelve-month period:
C. Employee's refusal or failure, after specific notice and
demand by the Company, to diligently perform services for the Company as
required by Section 4..1 hereof;
D. Employee's breach or violation of any material policy or regulation of
the Company, including, but not limited to, any policy or regulation
dealing with sexual harassment, discrimination based on age, sex, race,
religion or other protected category, illicit drugs, and environmental
protection matters;
E. Employee's taking of any action which requires the prior approval of the
Reporting Person without such approval; and
F.Employee breach of or failure to perform any of his obligations under the
Invention Agreement, as that term a defined in Section 10.2, below.
If the Company proposes to terminate this Agreement under clause A, or
clause B above., this Agreement shall terminate automatically at the end
of such 30-day period and the Company shall have no further obligation
to give Employee any further notice of termination. If the Company proposes
to terminate this Agreement under any of clause C., D., E., or F., above,
this Agreement shall terminate automatically at the end of such 30-day
period and the Company shall have no further obligation to give Employee
any further notice of termination unless Employee has cured, to the
reasonable satisfaction of the Company, during such 30-day period the
alleged cause of termination and the Company provides Employee written
notice of its acceptance of such cure. Notwithstanding anything in this
Agreement to the contrary, if the Company proposes to terminate this
Agreement for cause under this Section 7.1.2, so long as t he Company
provides Employee a reasonable opportunity to cure any alleged cause, if
the Company is required to do so, the Company may terminate this Agreement
as of the date of the initial notice of termination and pay Employee an
additional thirty (30) day's of severance compensation.
7.2 Termination by Employee
7.2.1 For Cause. Employee may terminate this Agreement for "cause" by
giving the Company thirty (30) days prior written notice of termination for
purposes; of this Section 7.2.1,the term "cause" shall mean and include the
Company's breach to failure to perform any of its material obligations
under this Agreement. If Employee proposes to terminate this Agreement
under this Section 7.2.1, this Agreement shall terminate automatically at
the end of such 30-day period unless the Company has cured, to the
reasonable satisfaction of Employee, its alleged breach or failure to
perform during such 30-day period and Employee provides the Company written
notice of its acceptance of such cure.
7.2.2 Salary Determination. If, on or before August 1, 2001, the Company
and Employee do not agree on the salary to be paid to Employee for the
period on and after July 1, 2001, Employee may terminate this Agreement by
giving the Company thirty (30) days prior written notice of termination. If
Employee proposes to terminate this Agreement under this Section 7.2.2,this
Agreement shall terminate automatically at the end of such 30-day period
unless the Company and Employee have agreed on the applicable salary during
such 30-day period.
7.2.3 For Good Reason. Employee may terminate this Agreement at any time
for "Good Reason" by giving to the Company sixty (60) days prior written
notice of termination of this Agreement.Employee must deliver his notice of
termination under this Section 7.2.3 within sixty (60) days after the
occurrence of any of the events specified below. This notice of termination
must set forth in reasonable detail the facts and circumstances that
support Employee's claim of tight to terminate this Agreement under this
Section 7.2.3. For purposes of this Section 7.2.3, the term "Good Reason"
shall mean and include only the occurrence of any of the following events
within ninety (90) days after the occurrence of a Change in Control, as
defined in Section 7.2.4 below:
A. the Company reduces Employee's salary payable under Section
5.1.1 above from that in effect on the Effective Date (or from any higher
salary that was put in effect as of any subsequent date);
B. the Company discontinues providing to Employee any material
fringe benefit or other benefit described in either of Sections 5.1.4
and 5.1.5 above, and fails to provide Employee with substantially equivalent
alternative benefits; provided that Employee shall not have "Good Reason" on
the occurrence of any event described in this clause B if the
discontinuation of the fringe or other benefit is as a result of the
discontinuation of such benefit for all Employee officers of the Company;
C. A material change occurs in the functions, duties, responsibilities,
reporting relationship, location of work, and/or title of Employee which is
not agreed to by Employee; provided that none of(i) a change in the identity
or title of the Reporting Person, or (ii) a change in Employee's title
following the merger or consolidation of the Company with or into any
other corporation or entity or (iii) a temporary changing any of the
matters described in this clause C for a period of no more than
sixty (60) consecutive days as a result of Employee's incapacity or
disability shall by itself constitute an event described in this clause C;or
D. the Company requires Employee to perform any function or duty, the
performance of which would violate any material statute or public policy the
violation of which could expose Employee to personal liability or which
would have a material adverse effect on Employee's business reputation.
7.2.4 Change of Control. For purposes of Section 7.2.3 above, the term
"Change of Control" means the occurrence of any of the following events:
A. an acquisition (other than directly from the Company) of any voting
securities of the Company by any person or g roup of affiliated or related
person, immediately after which such person or group of persons has
beneficial ownership (within the meaning of the Securities Exchange Act of
1934) of fifty percent (50%) or more of the combined voting power of the
Company's then outstanding voting securities; provided that this Section
shall not apply to an acquisition of voting securities by ET or any employee
benefit plan or trust maintained by or for the benefit of the company or its
employees;
B. a merger, consolidation or reorganization involving the Company, unless
all of the following conditions see satisfied;
C. the shareholders of the Company,immediately before such transaction, own,
directly or indirectly, immediately after such transaction, in substantially
the same proportion as their ownership of the voting securities of the
Company immediately before such transaction, at least fifty one percent
(51%) of the outstanding voting securities of (a) the corporation resulting
from such transaction (the "Surviving Corporation") or (b) the immediate
parent corporation of the Surviving Corporation; and
D. the individuals who were Directors of the Company at the time of the
execution of the agreement providing for such transaction constitute,
immediately after the transaction, at least a majority of the members of the
board of directors of (a) the Surviving Corporation or (b) a c orporation
beneficially owning, directly or indirectly, a majority of the voting
securities of the Surviving Corporation: or
E. a complete liquidation or dissolution of the Company; or
F. the sale or other disposition of all or substantially all of the
Company's assets to any person other than a sale or transfer of all or any
portion of the Company's assets to another corporation in which the Company
owns, immediately after such sale or transfer, eighty percent (80%) or more
of the outstanding voting securities of such corporation.
7.3 Employee's Death, This Agreement shall terminate automatically as of the
date of Employee's death,
Effect of Termination.
8.1 Termination By the Company Without Cause. If the Company terminates this
Agreement under Section 7.1.1 above without cause, the Company shall pay to
Employee the following severance benefits;
8.1.1 severance compensation in an amount equal to six (6) months salary
payable at the rate then applicable under Section 5.1.1 above;
8.1.2 all premiums payable with respect to the continuation of the
participation by Employee and his dependents in the Company's medical
insurance plan for the period equal to the greater of (i) twelve (12) months
after the date of termination and (ii) the period through the date on which
Employee and his dependents became eligible to participate in the medical
insurance plan of any employer other than the Company;
The Company shall pay the severance compensation payable to Employee under
clause A, above in the same monthly or other periodic installments in which
the Company paid Employee his salary under this Agreement.
8.2 Termination by Employee. If Employee terminates this Agreement under
Section 7.2 above, the Company shall pay to Employee the following severance
benefits:
8.2.1 severance compensation in an amount equal to twelve (12) months'salary
payable at the rate then applicable under Section 5.1.1 above; and
8.2.2 all premiums payable with respect to the continuation of the
participation by Employee and his dependents in the Company's medical
insurance plan for the period equal to the greater of (i) twelve (12) months
after the date of termination and (ii) the period through the date on which
Employee and his dependents become eligible to participate in the medical
insurance plan of any employer other than the Company.
The Company shall pay the severance compensation payable to Employee under
clause A. above in the same monthly or other periodic installments in which
the Company paid Employee his salary under this Agreement.
8.3 Other Termination In the event of the termination of this Agreement in a
manner to which neither of Sections 8. I and 8.2 above apply, and except as
otherwise specifically provided in this Agreement, the Company shall be
released and discharged of and from all obligations under this Agreement
except for its obligation to pay to Employee monies due and owing to
Employer with respect to services performed prior to the date of termination
of this Agreement.
9. Successors. This Agreement shall inure to the benefit of the Company's
successors and assigns, the Company may assign this Agreement and grant its
rights hereunder in whole or is part to a corporation with which it may be
merged, consolidated, or combined, or to a corporation which may acquire all
of a major portion of the Company's assets; provided that no such assignment
shall be effective unless and until any such assignee shall expressly assume
all of the Company's obligations hereunder.
10. Confidential Information.
10.1 Confidentiality. Employee shall not, either during the term of this
Agreement or thereafter, except in the proper course of his performance of
services under this Agreement, use or divulge, publish or disclose to any
person, first or company whomever any confidential information of the
Company or any of its affiliate, subsidiary, or parent companies which he
has heretofore received or obtained or hereafter receives or obtains, in
relation to (a) the earnings, profits, costs, expenses or other financial
aspects of the Company or such other company, (b) the clients, customer
lists, or marketing practices of the Company or such other company, or (c)
any other confidential information of the Company or such other company.The
term "confidential information" shall mean all that information which here
or hereafter is not generally known and which is confidential or proprietary
to the Company or such other company. A11 information disclosed to Employee,
or which Employee may obtain or have access to by reason of his employment
under this Agreement, whether such information is originated by Employee or
by others, which Employee reasonably should believe to be confidential
information, or which is treated by the Company as confidential information,
shall be treated for all purposes under this Agreement as confidential
information. Immediately upon termination of his employment hereunder
Employee shall return to the Company all records, files, documents and other
materials (in whatever form or media) and all copies thereof, which contain
or relate to any confidential information of the Company.
10.2 Ownership of Confidential Information. Employee hereby acknowledges
that all Confidential Information is the property of the Company.
10.3 Invention Assignment. Simultaneously with his execution of this
Agreement and effective as of the Effective Date of this Agreement, Employee
shall execute and deliver to the Company an Proprietary Information
Agreement in the form set forth in Exhibit A hereto (the "Invention
Agreement"). Employee's obligation under the Invention Agreement shall be in
addition to his obligations under this Agreement.
11. Injunctive Relief. Employee hereby acknowledges and agrees that it would
be difficult to fully compensate the Company for damages for a breach
(or threatened breach of any of the provisions of Sections 4.1 or 10 hereof.
Accordingly, Employee specifically agrees that the Company shall be entitled
to temporary and permanent injunctive relief to enforce the provisions of
Sections 4.1 and 10 hereof and that such relief may be granted without the
necessity of proving actual damages. The foregoing provision with respect to
injuntive relief shall not, however, prohibit the Company from pursuing any
other rights or remedies available to the Company for such breach or
threatened breach, including, but not limited to the recovery or damages
from Employee or any third parties.
12. Miscellaneous Provisions.
12.1 Notices. Any notice given pursuant to this Agreement may be served
personally on the party to be notified or may be mailed, with postage
theroon fully prepaid, by certified or registered mail with return receipt
requested, addressed to the person at the address set forth on the signature
page of this Agreement, or at such other address as such party may from time
to time designate in writing. Any notice shall be deemed delivered when
given, if personally served, and ten (10) business days after mailing, if
mailed.
12.2 . All rights and remedies of the parties hereto are separate and
cumulative, and no one of them, whether exerciscd or not, shall be deemed to
limit or exclude any other rights or rernedies which the parties hereto may
have. Neither party hereto shall be deemed to waive any rights or remedies
under this Agreement unless such waiver be in writing and signed by such
party. No delay or ommission on the part of either party hereto in
exercising any right or remedy shall operate as a waiver of such right or
remedy or any other right or remedy. A waiver of any fight or remedy on any
one occasion shall not be construed as a bar to or waiver of any such right
or remedy on any future occasion.
12.3 Severability. If any provision or portion thereof of this
Agreement is held to be unenforceabe or invalid, the remaining provisions
and portions thereof shall nevertheless be given, and continue in full
force and effect.
12.4 Section Headings. Section headings oontained in this Agreement are
for convenience only and are not a part of this Agreement and do not in any
way limit or modify the provisions of this Agreement.
12.5 Survival of Certain Provisions. Notwithstanding anything to the
contrary contained herein, in the event of any termination of this
Agreement, the Company shall retain all of its rights under Sections 8, 10.
11 and 12.7 hereof
12.6 Authorized Representative of Company. Although Employee is an
officer of the Company, any and all actions and decisions to be taken or
trade by the Company or the Reporting Person under this Agreement or with
respect to the employment relationship described in this Agreement, and any
and all consents, approvals and agreements permitted or required to be given
or made on the part of the Company or the Reporting Person under this
Agreement, shall be made and accomplished by the Company only through the
actions taken, in writing, of its Chief Financial Officer or such other
person or persons as the Board of Directors may from time to time designate.
l2.7 Arbitration, Except for any action for specific performance or
injunctive or other equitable relief, any controversy or claim between the
Company and Employee involving the construction or application of any of the
terms, provisions or conditions of this Agreement shall be settled by
arbitration conducted in the City of Santa, Xxxxxxx in accordance with, and
by an arbitrator appointed pursuant to, the Rules of the American
Arbitration Association in effect at the time, and judgment upon the award
rendered pursuant thereto may be entered in any court having jurisdiction
hereof, and all rights or remedies of the parties hereto to the contrary are
hereby expressly waived. The arbitration will be conducted in private, and
will not be open to the public or the media. The testimony and other
evidence presented, and the results of the arbitration, unless otherwise
agreed to by both parties, are confidential and may not be made public or
reported by any news agency or legal publisher or service.
12.8 Entire Agreement. This Agreement contains the entire understanding
between the parties hereto, and supersedes any prior written or oral
agreements between them respecting the subject matter contained herein.
There are no representations, agreements, arrangements or understandings,
either oral or written, between or among any of the parties relating to the
subject matter of this Agreemcnt which are not fully expressed herein.
12.9 Interpretation. Each of the Company and Employee has been represented
by independent legal counsel with respect to the negotiation, preparation
and negotiation of this Agreement and the consummation of the transactions
contemplated herein. Reicker, Clough, Pfau, Pyle, XxXxx & Xxxxxx LLP
("RCPPMH") has represented only the Company. Therefore, the normal rule of
construction that an agreement shall be interpreted against the drafting
party shall not apply. Each of the parties waives any claim that he might
have against any or all of the other party and/or RCPPMH by reason of
RCPPMH's representation of the Company with respect to this Agreement and
any potential conflict of interest that might arise as a result of such
representation or RCPP's continuing representation of the Company.
12.10 Amendment. This Agreement may be amended only in writing duly executed
by all of the parties hereto.
12.11 Governing Law. All questions with respect to the construction of this
Agreement and the rights and liabilities of the parties with respect thereto
shall be governed by the laws of the State of California.
12.12 Attorney's Fees. In any arbitration, suit or other action between the
parties seeking enforcement of any of the terms and provisions of this
Agreement, the prevailing party in such arbitration, suit or other action
shall be awarded, in addition to damages, injunctive or other relief, its
reasonable costs and expenses, not limited to taxable costs, and a
reasonable attorney's fees.
(Signatures appear on the following page.)
1N WITNESS WHEREOF, the parties have entered into this Employment Agreement
as of the day and year first above written.
"Company" "Employee"
XXXXXX INDUSTRIES, INC.
By:____________________________ ____________________
Min-Xxxxx Xxxx, Secretary Xx Xxxxx Park
Address for Notice:
Attention Secretary
Exhibit A
Proprietary Information Agreement
