EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into this 1st day of
November, 1998 by and between ROEX, INC., a California corporation ("Employer"),
and XXXXXX X. XXXXXXXX ("Employee") with reference to the following facts:
A. Employer desires to employ Employee to serve as the Chief Executive Officer
of Employer.
B. Employer and Employee desire to enter into this Agreement to assure
Employer of the services of Employee and to set forth the rights, duties
and obligations of the parties under this Agreement.
C. Now, therefore, based upon mutual promises and covenants herein contained,
and for other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties agree as follows:
1. Employment. Employer hereby employs the Employee, and Employee hereby
accepts and agrees to employment as a full-time employee on the terms
and conditions set forth herein. Employee shall serve in the capacity
of Chief Executive Officer of the Employer and shall include:
(a) Supervising the running of all aspects of the Employer;
(b) Continuing and increasing the Employer's profitability;
(c) Seeking new clients;
(d) Taking other actions to expand the operations of the
Employer;
(e) Performing such other services and duties as may from time
to time be decided by Employer.
Employee further agrees that, except during vacation periods or
in accordance with Employer's personnel policies, if any,
covering leaves or reasonable periods of illness or other
incapacitation, Employee shall devote his full time services to
the business and interest of Employer. Employee shall perform
said duties and those assigned to him by Employer with fidelity,
to the best of his ability, and in the best interests of
Employer.
2. Compensation. During the term of this Agreement, Employee shall
be entitled to receive as total compensation for services
hereunder, including services as a Director of Employer, an
annual salary, payable semi-monthly, on the 15th and 31st day of
each month, in the amount of Six Percent (6%) of net sales (net
sales representing sales net of returns, credits and refunds. Net
sales shall not include any shipping or sales taxes.)
3. Employer Benefit Plans. Employee shall be entitled to participate
in all employee benefit plans maintained by the Employer for its
employees, including, by way of example, medical, dental or such
other plans which the Employer has in effect or hereafter places
into effect. Employer shall cover Employee with Directors' and
Officers' Liability Insurance or equivalent corporate
indemnification.
4. Car Allowance. Employer shall provide Employee a car allowance of
One Thousand Dollars ($1,000.00) per month as reimbursement for
all ordinary and necessary expenses of Employee as a result of
Employee's lease and use of his automobile for the performance of
his duties.
5. Bonus. The Board of Directors of Employer may, at its sole
discretion, award Employee bonuses from time to time as they deem
appropriate based on Employer's performance.
6. Trade Secrets. Employee specifically agrees that he will not, at
any time, whether during or subsequent to the term of Employee's
employment by Employer, in any fashion, form or manner, unless
specifically consented to in writing by Employer, either directly
or indirectly use or divulge, disclose or communicate to any
person, firm or corporation, in any manner whatsoever, any
confidential information of any kind, nature or description
concerning any matter affecting or relating to the business of
the Employer, including without limiting the generality of the
foregoing, the names, buying habits, rates being charged or
practices of any of its clients, its marketing methods and
related data, the names of any of its vendors or suppliers, costs
of materials, the prices it obtains or has obtained and which it
sells or has sold its services, sales costs, lists or other
written records used in Employer's business, compensation paid to
employees and other terms of employment, or any other
confidential information of, about or concerning the business of
Employer, its manner of operation or other confidential data of
any kind, nature or description, the parties hereto stipulating
that as between them, the same are important, material and
confidential trade secrets and affect the successful conduct of
the Employer's business and its goodwill, and that any breach of
any term of this paragraph is a material breach of this
Agreement. All equipment, notebooks, documents, memoranda,
reports, files, samples, books, correspondence, lists, other
written and graphic records, and the like affecting or relating
to the business of Employer, which Employee shall prepare, use,
construct, observe, possess or control shall be and remain the
Employer's sole property.
7. Continuing Obligations. Employee's obligations shall continue in
effect beyond his employment period and the obligations shall be
binding on Employee's assigns, heirs, executors, administrators,
and other legal representatives.
8. Term and Termination. This Agreement shall commence on the 1st
day of November, 1998 and shall continue for five years ending on
October 30, 2003.
9. Employee's Duties on Termination. In the event of termination of
employment with Employer, Employee agrees to deliver promptly to
Employer all equipment, notebooks, documents, memoranda, reports,
files, samples, books, correspondence, lists, or other written or
graphic records, and the like, relating to Employer's business,
which are or have been in his possession or under his control.
10. Severable Provision. The provisions of this Agreement are
severable, and if any one or more provisions may be determined to
be judicially unenforceable, in whole or in part, the remaining
provisions shall nevertheless be binding and enforceable.
11. Arbitration.
(a) Any controversy or claim arising out of this Agreement
(except the obligations set forth in Paragraphs 6 and 9), or
the breach thereof, shall be settled by arbitration in
accordance with the California Arbitration Act, ?? 1280
through 1294.2 of the California Code of Civil Procedure,
including ?1283.05 thereof relating to discovery. Any demand
for arbitration shall be in writing and be made within a
reasonable time after the matter in question has arisen.
Unless the parties have otherwise agreed, the arbitration
shall be conducted in Los Angeles, California, in accordance
with the commercial arbitration rules of the American
Arbitration Association then in effect. Within thirty (30)
days after arbitration is demanded, each party will choose
one arbitrator. If the two (2) arbitrators have not agreed
on a third, neutral arbitrator within thirty (30) days after
their designation, the third will be chosen by the American
Arbitration Association. The award of a majority of the
arbitrators shall be final, and judgment upon the award may
be entered in any court having jurisdiction. In no event
shall any demand for arbitration be made after the date when
a lawsuit based on the same claim would be barred by the
applicable statute of limitations. The arbitration may award
reasonable attorneys' fees and costs to the prevailing
party.
(b) With reference to the enforcement of the provisions of
Paragraphs 6 and 9, the prevailing party shall be entitled
to recover all costs, attorneys' fees and expenses incurred
in any action and appeal related thereto.
12. Notices. Any notice to be given to Employer under the terms of
this Agreement shall be addressed to Employer at the address of
its principal place of business, and any notice to be given to
Employee shall be addressed to him at the home address last shown
on the records of Employer, or at such other address as either
party may hereafter designate in writing to the other. Any such
notice shall be deemed to have been duly given if personally
delivered or when enclosed in a properly sealed and addressed
envelope, registered or certified, return receipt requested, and
deposited (postage prepaid) in a post office or branch post
office maintained by the United States Government.
13. Waiver. Either party's failure to enforce any provision or
provisions of this Agreement shall not in any way be construed as
a waiver of any such provision or provisions, or prevent that
party thereafter from enforcing each and every other provision of
this Agreement.
14. Enforcement. Employer and Employee recognize and acknowledge that
Employee is hereunder employed in a position where Employee will
be rendering personal services of a special, unique, unusual and
extraordinary character. Employee agrees that the breach by him
of this Agreement, including its covenants, could not reasonably
or adequately be compensated in damages in an action at law and
that Employer shall be entitled to injunctive relief, which may
include, but shall not be limited to, restraining Employee from
rendering any service that would breach this Agreement. However,
no remedy conferred by any of the specific provisions of this
Agreement (including this Paragraph 14) is intended to be
exclusive of any other remedy, and each and every remedy shall be
cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by
statute or otherwise. The election of any one or more remedies by
Employer shall not constitute a waiver of the right to pursue
other available remedies.
15. Titles and Headings. Titles and headings to paragraphs in this
Agreement are for the purpose of reference only and shall in no
way limit, define or otherwise affect the provisions of it.
16. Governing Law. The parties hereto agree that it is their
intention and covenant that this Agreement and performance under
it, and all suits and special proceedings that may ensue from its
breach, be construed in accordance with and under the laws of the
State of California, and that in any action, special proceeding
or other proceeding that may be brought arising out of, in
connection with, or by reason of this Agreement, the laws of the
State of California shall be applicable and shall govern to the
exclusion of the law of any other forum, without regard to the
jurisdiction in which any action or special proceeding may be
instituted.
17. Employee's Representations. Employee represents and warrants that
he is free to enter into this Agreement and to perform each of
the terms and covenants of it. Employee represents and warrants
that he is not restricted or prohibited, contractually or
otherwise, form entering into and performing this Agreement and
that his execution and performance of this Agreement is not a
violation or a breach of any other agreement between Employee and
any other person or entity.
18. Ratification by Employer's Board of Directors. This Agreement is
subject to, and shall become operative upon, the adoption of a
resolution approving the Agreement by the Board of Director of
the Employer.
IN WITNESS WHEREOF the parties hereto have executed this Agreement the day and
year first-above written.
EMPLOYER:
ROEX, INC.
By:______________________________
XXXXX XXXXXXXX
Secretary
EMPLOYEE:
XXXXXX X. XXXXXXXX
By:_____________________________
