EMPLOYMENT AGREEMENT
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This Employment Agreement is entered into as of October 1, 1999 (the
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"Effective Date") by and between Ocean West Enterprises, Inc., a California
corporation (the "Employer"), which has offices at 00000 Xxxxxxx Xxx.,#000
Xxxxxx, XX 00000, and Xxxxx Xxxxxxxx, an individual (the "Employee"), whose
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address is 00000 Xxx xxx Xxxx Xxxxxxx Xxxxxx, XX 00000
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IN CONSIDERATION OF the mutual covenants herein contained, and other good
and valuable consideration, the parties hereto agree as follows:
1. Employment. As of the Effective Date, Employer hereby agrees to employ
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Employee in such executive and managerial capacity as from time to time
designated by Employer. Employee hereby accepts such employment upon the
terms and conditions hereinafter set forth and agrees during the term of
employment hereunder to devote his full working time and best efforts to
the business and affairs of Employer and to the performance of his duties
hereunder. Employee's initial duties will be as Executive Vice
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President/ CFO.
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2. Period of Employment. The term of this Agreement will be five years
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commencing with the Effective Date, except that Employee's employment may
be terminated:
(a) by Employer for "Just Cause", as defined in Paragraph 8(b) below; or
(b) by Employer, if Employer ceases operations, terminates all other
employees and proceeds to liquidate its business and assets; or
(c) by Employee, by giving Employer 30 days' prior written notice of
resignation.
3. Base Salary. For the services to be rendered hereunder, Employer shall pay
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to Employee a "Base Annual Salary" at an annual rate of not less than
$300,000.00, to be paid in installments in accordance with Employer's
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normal payroll cycle. Any amount not paid will be considered deferred
salary and will be treated the same as deferred compensation and will be
handled in accordance with clause 5 (Deferred Compensation) Employee may
elect at any time to collect on the deferred salary. Employee, upon his own
discretion, may elect to release Ocean West Enterprises, Inc. from this
obligation.
4. Expenses. During the term of employment, Employer shall reimburse Employee
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promptly for reasonable business expenses, including, but not limited to,
travel, parking, and business meetings, made and substantiated in
accordance with the policies and procedures established from time to time
by Employer.
5. Deferred Compensation.
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(a) Employer will create an account on its books to be known as the
Officers Deferred Compensation Account (the "Account"). With respect to
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each year of Employee's employment under this Agreement, Employer will
credit to the Account an amount equal to 20% of Employer's net profit
before taxes for such year, as determined by Employer's accounting firm.
For any period of employment which includes only a portion of a fiscal year
of Employer, the amount to be credited will be prorated based on the number
of days of employment. The Account will not accrue interest. The Employee
may take a cash or stock bonus. If taken in stock, the amount of stock will
be equal to two times the amount of the cash not taken.
(b) The amount credited to the Account will become due and payable to
Employee, in a lump sum:
(1) on an annual basis; or
(2) within 30 days after termination of employment.
provided that if the amount to be credited for any period is not determined
as of such payment date, the payment for such final period(s) will be made
within 30 days after the amount is determined.
(c) If Employee agrees to extend the term of employment for one or more
additional one year terms, then on the day following each extension the
Employee can elect to receive a portion of or all of the amounts previously
credited to Account.
(d) If Employee dies before all payments due under this Paragraph 5 are
paid, any such remaining payments will be made to such beneficiary as
Employee has designated in writing to Employer. The beneficiary designation
may be revoked or changed by Employee by written notice to Employer at any
time or times before Employee's death, without the consent of any prior
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beneficiary. If no such beneficiary designation is in effect at Employee's
death, then any benefits payable under this Paragraph 5 will be paid to
Employee's estate.
(e) Nothing contained in this Agreement and no action taken pursuant to the
provisions of this Agreement shall create or be construed to create a trust
of any kind, or a fiduciary relationship between Employer and Employee, his
designated beneficiary or any other person. Amounts payable under this
Paragraph 5 are not funded for tax purposes or for purposes of Title I of
ERISA, and will be paid exclusively from the general assets of Employer.
Employee, his beneficiary, estate and any other person claiming a right to
payment or to any interest in the Account must rely solely on the unsecured
promise of Employer set forth herein, and nothing in this Agreement shall
be construed to give Employee, his beneficiary, estate or any other person
any claim, right, security interest or other interest in any fund, trust,
bank or investment account, insurance contract, or asset of Employer. The
benefits under this Agreement constitute liabilities of Employer, payable
when due, and Employee shall have the right to enforce his claim against
Employer in the same manner as any unsecured creditor.
6. Employee Benefits. Employee shall be entitled to participate in the benefit
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plans, as presently constituted or as may be changed from time to time, of
Employer, as may be applicable to Employee in accordance with the
provisions of such plans. In addition, Employer will lease a vehicle for
Employee (lease payment not to exceed $1,000) and all applicable expenses
associated with vehicle.
7. Termination.
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(a) Termination by Employer for Just Cause. If Employer terminates
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Employee's employment hereunder for Just Cause, as herein defined, Employer
shall pay to Employee his Base Annual Salary as provided in Paragraph 3 and
the amount of the Account as provided in Paragraph 5 and continue his
employee benefits through the date on which Employee's employment hereunder
is terminated in full settlement of all compensation Employee is entitled
to hereunder, provided that such termination shall not affect Employee's
then vested rights under any benefit plans.
(b) Just Cause. "Just Cause" shall mean willful misconduct in following
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the legitimate directions of Employer; breach of this Agreement by
Employee; conviction of a felony; habitual drunkenness; excessive
absenteeism not related to illness, sick leave or vacations, but only after
notice from Employer followed by a repetition of such excessive
absenteeism; or dishonesty.
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8. Notices. All notices under this Agreement shall be in writing and shall be
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deemed effective when delivered in person to the President of Employer or
on the third business day after deposit thereof in the U.S. mails, postage
prepaid, for delivery as registered or certified mail - addressed, in the
case of Employee, to him at his residential address then shown in
Employer's files, and in the case of Employer, to its business
headquarters, attention of the President, or to such other address as
Employee or Employer may designate in writing at any time or from time to
time to the other party.
9. Severability. Any portion of this Agreement which is held to be invalid or
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unenforceable, or invalid or unenforceable for some point or period of time
or with respect to any location, shall be severable and be deemed to be
written in such manner as to provide for Buyer the maximum protection
sought hereunder, and the remaining covenants and restrictions or portions
thereof shall remain in full force and effect.
10. Miscellaneous. This Agreement constitutes the entire understanding between
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Employer and Employee relating to employment of Employee by Employer and
supersedes and cancels all prior written and oral agreements and
understandings with respect to the subject matter of this Agreement. The
rights and obligations of Employee under this Agreement cannot be assigned,
transferred, pledged or encumbered. This Agreement shall be binding upon
and shall inure to the benefit of Employer and its successors and assigns.
This Agreement shall be governed by the laws of the State of California
without regard to conflicts of laws principles. If any action is brought to
enforce or interpret the provisions of this Agreement, the prevailing party
will be entitled to reasonable attorney's fees in addition to any other
relief to which that party may be entitled.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
year and date first above written.
/s/ Xxxxx Xxxxxxx
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Ocean West Enterprises Inc.
By: /s/ Xxxxxxxx Xxxxxxx
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Xxxxxxxx Xxxxxxx, Director
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