EMPLOYMENT AGREEMENT
Agreement made this 01st day of August, 1999 between Advanced Materials Group,
Inc., a Nevada corporation (the "Company") and Xxxxx X. Xxxxxxx, Laguna Niguel,
California ("Employee").
WITNESSETH:
WHEREAS, the parties acknowledge that Employee has abilities and expertise that
are unique and valuable to the Company; and
WHEREAS, in view of such abilities and expertise, the Company desire to retain
Employee as Senior Vice President/General Manager; and
WHEREAS, the Company and Employee have determined that such engagement of
Employee be subject to a mutually acceptable written agreement;
NOW THEREFORE, in consideration of the mutual agreements contained herein and
intending to be legally bound, the parties hereto agree as follows:
1. SERVICES
(a) The Company hereby employs Employee and Employee hereby accepts
such employment on the terms and conditions set forth herein. In
this regard, Employee shall perform and discharge well and
faithfully the duties and responsibilities that are commensurate
with his position.
(b) Employee is not and shall not be engaged directly or indirectly
in any other business activity, or previously have contracted to
perform such activity at a future date which would prevent the
performance of the obligations hereunder or involve activities
which would result in a breach of any provision of this
Agreement.
2. TERM
(a) The term of this Agreement shall begin on the date hereof and
shall cease and terminate upon the earliest of (i) the close of
business on the 1st day of August, 2001, (ii) the death of
Employee; (iii) termination by the Company, at its option, for
"cause" as defined in subdivision (b) of this Section 2; or (iv)
termination by mutual agreement between the parties.
(b) As used in this Section, "cause" shall mean and be limited to
gross negligence or willful misconduct of Employee in the
performance of his duties, or conviction of a felony or a crime
involving moral turpitude.
(c) In the event of a permanent disability, the contract will remain
in effect until the start of long-term disability insurance
coverage (3 months).
3. COMPENSATION
(a) The Company shall pay to Employee a base salary of $135,000 per
year, payable in weekly installments.
(b) During the term of his employment, Employee shall be entitled to
participate in employee benefit plans or programs of the Company,
if any, to the extent his position, tenure, salary, age, health
and other qualifications makes him eligible to participate,
subject to the rules and regulations applicable thereto, which
plans or programs will include, without limitation, health
insurance benefits, performance-based options, an appropriate
automobile allowance, and bonus programs, consistent with the
reasonable past practices of the Company.
(c) The Company reserves the right to increase the compensation of
the Employee, specified in this instrument, at any time or times
hereafter and no such increase or adjustment shall operate as a
cancellation of this Agreement, but merely as an amendment to
Section 3, and all the other terms, provision, and conditions of
this Agreement shall continue in force and effect as herein
provided.
(d) The Company will review this contract for consideration of a one
(1) year extension when contract is 60 days from expiration.
4. EXPENSES
The Company will reimburse Employee for direct out-of-pocket expenses
properly incurred by him in his performance of this Agreement and
provided that a written accounting is made to the Company by Employee.
5. CONFIDENTIALITY AND NON-COMPETITION
(a) Employee acknowledges that as a consequence of his relationship
with the Company, he has been and will continue to be given
access to confidential information which may include the
following types information: financial statements and related
financial information with respect to the Company, trade secrets,
computer programs, certain methods of operation, procedures,
improvements, systems, customer lists, supplier lists and
specifications, and other private and confidential materials
concerning the Company's business (collectively, "Confidential
Information"). Employee agrees that he shall maintain any
Confidential Information in strictest confidence and shall not
disclose any Confidential information to third parties during the
terms of this agreement and after the termination hereof, however
such termination shall occur, unless previously approved by the
President or Chairman of AMG in writing.
Notwithstanding the foregoing, nothing herein shall be construed
as prohibiting Employee from disclosing any Confidential
Information
(a) which, at the time of disclosure, Employee can demonstrate either
was in the public domain and generally available to the public or
thereafter became a part of the public domain and generally available
to the public by publication or otherwise through no act of Employee;
(b) which Employee can establish was independently developed by a third
party who developed it without the use of the Confidential Information
and who did not acquire it directly or indirectly from Employee under
an obligation of confidence; (c) which Employee can show was received
by him after the termination of this Agreement from a third party who
did not acquire it directly or indirectly from the Company under an
obligation of confidence; or (d) to the extent that Employee can
reasonably demonstrate such disclosure is required by law or in any
legal proceeding, governmental investigation, or other similar
proceeding.
(b) Employee covenants and agrees that, in order to protect the company's
interest in its business, operations and assets during the term of
this Agreement and for a period of one (1) year following the
termination of this Agreement, however the same shall occur, he will
not, without prior written consent of the Company, directly or
indirectly:
(i) engage anywhere in the United States, whether by virtue of
stock ownership, management responsibilities or otherwise,
in companies, business, organizations and/or ventures which
are directly or indirectly competitive with the business of
the Company as presently conducted or contemplated (the
"Business"); or
(ii) become interested, directly or indirectly, whether as
principal, owner, stockholder, partner, agent, officer,
director, employee, salesman, joint venture, consultant,
advisor, independent contractor or otherwise, in any person,
firm, partnership, association, venture, corporation or
entity engaging anywhere in the United State in the Business
or directly or indirectly in competition with the Company.
6. INVENTIONS
(a) Employee hereby sells, transfers and assigns to the Company, or to
any person or entity designated by the Company, all of the entire right,
title and interest of Employee in and to all inventions, ideas,
disclosures and improvements, whether patented or unpatented, and
copyrightable materials, made or conceived by Employee, solely or
jointly, or in whole or in part, during or before the term hereof which
(i) relate to methods, apparatus, designs, products, processes or
devices sold, leased, used or under construction or development by the
Company, or (ii) otherwise relate, pertain or are useful to the
business, functions or operations of the Company as presently conducted
or to be conducted by the Company, or (iii) arise (wholly or partly)
from the efforts of Employee since 16th of August, 1991 or otherwise
during the term hereof.
(b) Employee shall communicate promptly and disclose to the Company, in
such form as the Company requested, all information, details and data
pertaining to the aforementioned inventions, ideas, disclosures and
improvements; and whether during the term hereof or thereafter,
Employee shall execute and deliver to the company such formal transfers
and assignments and such other papers and documents as may be required
of the Employee to permit the company or any person or entity
designated by the Company to file and prosecute the patent applications
and, as to copyrightable material, to obtain copyright thereon. Any
invention by Employee within one year following the termination of this
Agreement shall be deemed to fall within the provisions of this
paragraph unless proved by Employee to have been first conceived and
made following such termination.
7. NO WAIVER
The failure of any party to insist upon the strict performance of
any of the terms, conditions or provisions of this Agreement shall not
be construed as a waiver of relinquishment of future compliance
therewith, and said terms, conditions and provisions shall remain in
full force and effect. No interpretation, changes, modifications,
terminations or waivers of any of the provisions of this Agreement
shall be binding upon the Company or Employee unless in writing and
signed by the person to be bound.
8. RIGHTS, OBLIGATIONS AND ASSIGNMENT
The rights and obligations of the Company under this Agreement
shall inure to the benefit of, and shall be binding upon, its
successors and assigns. The duties of Employee to any such successor
entity shall not be greater than duties performed for the Company
prior to such succession. Employee is prohibited from making any
assignment of this Agreement.
9. ENTIRE AGREEMENT
This Agreement and the exhibits hereto embody the entire understanding
between the parties hereto pertaining to the subject matter hereto and
supersedes all prior agreements and understanding of the parties in
connection therewith.
10. SEVERABILITY
If any of the provisions of this Agreement shall for any reason be
adjudged by any court of competent jurisdiction to be invalid or
unenforceable, such judgement shall not affect, impair, or invalidate
the remainder of this Agreement, but shall be confined in its
operations to the provision of this Agreement directly involved in the
controversy in which such judgment shall have been rendered.
11. NOTICES
Notices, other communications or deliveries required or permitted
under this Agreement shall be in writing directed as follows:
(a) TO THE COMPANY AT:
Advanced Materials Group, Inc.
00000 Xxxxx Xxxxxx Xxxx
Xxxxxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
(b) TO EMPLOYEE:
Xxxxx X. Xxxxxxx
00000 Xxxxx Xxxxxxx Xxxx
Xxxxxx Xxxxxx, XX 00000
WITH A COPY TO:
None
The Parties may designate by notice to each other any new address
for the purpose of this Agreement. Useless otherwise specified in this
Agreement, all notices shall be effective when mailed postage prepaid
by registered or certified mail, return receipt requested.
12. APPLICABLE LAW
This Agreement shall be enforced and construed in accordance with
the laws of the State of California.
13. DISPUTES
In the event any party brings legal proceedings to resolve a dispute
hereunder, the prevailing party shall have the right to recover
reasonable attorneys' fees and costs from the other. The term "legal
proceedings" shall include appeals from the lower court judgment.
14. PAYMENT ON TERMINATION
If the Company terminates this Agreement other than for cause as
defined in Section 2(b) of this Agreement, it shall pay Employee an
amount equal to the amount set forth in Section 3(a) as an annual
base salary divided by twelve and multiplied by the number of months
remaining until the 1st day of August, 2001.
15. HEADINGS
The captions and headings contained in this Employment Agreement are
for reference purposes only and shall not affect the interpretation or
meaning of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement as of
the date and year first above written.
ADVANCED MATERIALS GROUP, INC.
By: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
EMPLOYEE
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
