EXHIBIT 10.4
EMPLOYMENT AGREEMENT
This Agreement is made as of the 1st day of January, 2004, by and
between SEALIFE CORPORATION, a California corporation (the "Company") and XX
Xxxxx (the "Employee").
W I T N E S S E T H:
In consideration of the mutual covenants herein contained, the parties
hereto agree as follows:
1. EMPLOYMENT. The Company hereby employs Employee and Employee
hereby accepts such employment as Vice President of the Company upon the terms
and subject to the conditions set forth in this Agreement.
2. TERM. The term of employment shall be for a period of four (4)
years commencing as of January 1, 2004 (the "Effective Date"), and shall
terminate on December 31, 2009, unless sooner terminated pursuant to the
provisions hereof.
3. DUTIES.
(a) TITLE AND DESCRIPTION OF DUTIES. Employee shall serve
as Vice President, of Company. In that capacity, Employee shall assist in all
operations of the company. Including product development, marketing strategies,
business development , company goals and company business direction. and such
other tasks and duties as needed by the company or requested by the Board of
Directors of Company.
(b) CHANGE OF DUTIES. The duties of Employee may be
modified from time to time by the mutual consent of Company and Employee without
resulting in a rescission of this contract. The mutual consent of
Company/Employee shall constitute execution of that modification.
Notwithstanding any such change, the employment of Employee shall be construed
as continuing under the Agreement as modified.
(c) LOYAL AND CONSCIENTIOUS PERFORMANCE OF DUTIES.
Employee agrees that to the best of his ability and experience, Employee shall
render his exclusive services and assert his best efforts on behalf of Company,
devoting full time in the performance of his duties consistent with the needs of
the Company and the practices of the industry. Employee shall perform his duties
diligently and competently.
(d) PLACE OF PERFORMANCE OF DUTIES. Company shall
maintain an office in the Los Angeles, California environs. Employee shall
perform his duties at the Los Angeles office of the Company. Employee shall
travel from time to time to areas where the Company sells its products,
including Xxxxx Xxxxxxx, Xxxxxxx Xxxxxxx, Xxxxx Xxxxxxx, the Middle East, Asia,
Australia, Scandinavia and Europe.
4. OBLIGATIONS OF COMPANY.
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(a) Company shall provide Employee with compensation
incentives, benefits and business expense reimbursements specified elsewhere in
this Agreement.
(b) Company shall provide Employee with a private office,
stenographic help, office equipment and supplies and other facilities and
services suitable to Employee's position and adequate for the performance of his
duties, including, but not limited to the Los Angeles environs office, and for
the performance of the duties of one or more salespersons mutually selected by
Employee and Company.
5. COMPENSATION.
(a) ANNUAL SALARY. As compensation for the services to be
rendered by Employee, hereunder, Company shall pay Employee an annual salary at
the rate per annum of Three Hundred Thousand Dollars ($300,000.00) payable in
semi-monthly installments on the first and fifteenth day of each month during
the period of employment. All payments to Employee hereunder shall be made in
accordance with the Company's customary practices and procedures, all of which
shall be in conformity with applicable federal, state and local laws and
regulations. Compensation will be reviewed annually.
(b) PENSION AND PROFIT SHARING. As part of the
compensation for services rendered under this Agreement, Employee shall be
entitled to participate in the Company's pension, profit sharing, and 401K plans
if such plans are established by Company.
(c) BONUS. For each of Company's years in which the
Company makes a profit, Employee may be awarded a bonus in addition to any other
compensation to which Employee may be entitled under this Agreement. Such bonus
shall be in the sole discretion of Company, and if a bonus is provided shall be
paid not later than thirty (30) days after the end of the fiscal year.
6. EMPLOYEE BENEFITS.
(a) VACATION. Employee shall be entitled to twenty (20)
days vacation time each year with full pay. The time for such vacation shall be
requested by Employee, subject to the Company's reasonable approval. If Employee
is unable for any reason to take the total amount of authorized vacation during
any year, he may accrue the time and add it to vacation time for any following
year, or may receive a cash payment in the amount equal to the amount of the
annual salary attributable to that period.
(b) ILLNESS. Employee shall be entitled to fifteen (15)
days per year as sick leave and/or personal leave with full pay. Sick leave may
be accumulated up to a total of thirty (30) days.
(c) DEATH BENEFITS. If Employee should die during the
term of his employment hereunder, Company agrees to pay his surviving spouse,
designee or estate, the sums determined pursuant to Section 10 herein. Company
shall obtain life insurance on Employee's life to cover this benefit.
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(d) AUTO/INSURANCE BENEFIT. Company shall pay to Employee
Two Hundred Dollars ($200.00) per month for use and operation of Employee's
automobile for Company business and/or for payment of life insurance premiums as
requested by Employee.
(e) HEALTH CARE BENEFITS. Company agrees to include
Employee in health care benefits made available to its employees and officers,
if any, which may include major medical insurance for Employee and his family
members, long-term disability insurance, and such other health care benefits as
provided by Company to its employees and officers.
7. EXPENSES.
(a) REIMBURSE BUSINESS EXPENSES. The Company shall pay or
reimburse Employee for all reasonable, ordinary and necessary business and
travel expenses that may be incurred by him directly and solely for the benefit
of the Company in connection with the rendition of the services contemplated
hereby. Employee shall submit to the Company such invoices, receipts or other
evidences or expenses as Company may require.
(b) CREDIT CARDS. All business expenses reasonably
incurred by Employee in promoting the business of Company, including
expenditures for entertainment, gifts and travel, are to be paid, insofar as
possible, by the use of credit cards in the name of Company, which will be
furnished to Employee. Any such reasonable business expense that cannot be
charged on a credit card may be paid by Employee, who will later be reimbursed
by Company.
(c) IRS DISALLOWANCE. In the event for any reason the
Internal Revenue Service and/or the Franchise Tax Board disallows to this
Corporation a deduction upon its income tax return for any cost or expenditure
which was (a) incurred at the request of or for the benefit of, directly or
indirectly, Employee, including payments made by this Corporation to third
parties for the benefit of Employee, or (b) related in any way to the rendition
of services by Employee, or Employee's entertainment or travel, use of
facilities including but not limited to automobiles, outside offices, computer
equipment, or the like, then and in that event, the amount so disallowed shall
be treated as additional compensation to Employee in respect of services
rendered to this Corporation for the fiscal year in which such disallowed
deduction occurred. Employee shall be obligated to file such amended returns as
may be necessary to report the disallowed amount as additional income for such
year.
8. WORK PRODUCT/TRADE SECRETS.
(a) OWNERSHIP OF WORK PRODUCT. Employee agrees that any
and all intellectual properties, including, but not limited to, all ideas,
concepts, themes, inventions, designs, improvements and discoveries conceived,
developed or written by Employee, either individually or jointly in
collaboration with others pursuant to this Agreement shall belong to and be the
sole and exclusive property of Company. Employee further agrees to submit any
dispute as to whether any intellectual property was conceived, developed or
written pursuant to this Agreement to arbitration, pursuant to Section 16
herein, should there be a dispute as to such conception development or writing.
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Employee agrees that all rights in all intellectual properties
prepared by him pursuant to this Agreement, including patent rights and
copyrights applicable to any of the intellectual properties described herein,
shall belong exclusively to Company, shall constitute "works made for hire," and
shall be assigned promptly by Employee to Company. Employee further agrees to
assist Company in obtaining patents on all inventions, designs, improvements,
and discoveries that are patentable or copyright registration on all works of
creation that are copyrightable, and to execute all documents and do all things
necessary to vest Company with full and exclusive title and protect against
infringement by others.
(b) TRADE SECRETS. Employee during the term of his
employment under this Agreement will have access to and become acquainted with
various trade secrets, consisting of product specifications, research and
development, marketing plans, processes, and compilations of information,
records and specifications which are owned by Company and which are regularly
used in the operation of the business of Company. Employee shall not disclose
any of these trade secrets, directly or indirectly, or use any of them in any
way, either during the term of this Agreement or at any time thereafter, except
as required in the course of this employment. All files, records, documents,
drawings, specifications, equipment and similar items relating to the business
of Company, whether prepared by Employee or otherwise during his possession,
shall remain the exclusive property of Company.
9. TERMINATION OF EMPLOYMENT.
(a) COMPANY'S RIGHT TO TERMINATE. Company shall have the
right to terminate this Agreement:
(1) For cause, if Employee commits acts of
dishonesty, fraud, indictment for commission of a felony, moral turpitude
injurious to the business or reputation of Company.
(2) For reasons other than cause, including
(i) Upon the death of employee;
(ii) Permanent disability, the inability
to perform his duties for one hundred twenty (120) days during a calendar year;
(iii) Failure to fulfill job functions,
sales goals, satisfactory staffing, or otherwise failure to meet the objectives
of the position, after thirty (30) days written notice from the Company
specifying such failure;
(iv) Mutual agreement of the parties.
(b) EMPLOYEE'S RIGHT TO TERMINATE. Employee shall have
the right to terminate this Agreement and his obligations hereunder upon the
Company's unexcused failure, refusal or neglect to perform any of its
obligations hereunder, or under any other agreement between the Company and
Employee within sixty (60) days following written notice from Employee
specifying such failure, refusal or neglect.
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(c) EFFECTIVE MERGER, TRANSFER OF ASSETS OR DISSOLUTION.
This Agreement shall not be terminated by any voluntary or involuntary
dissolution of Company resulting from either a merger or a consolidation in
which Company is not the consolidated or surviving corporation, or a transfer of
all or substantially all of the assets of Company. In the event of any such
merger or consolidation or transfer of assets, Company's rights, benefits and
obligations hereunder shall be assigned to the surviving or resulting
corporation, or the transferee of Company's assets.
(d) EFFECT ON COMPENSATION. In the event this Agreement
is terminated prior to the completion of the term and employment specified
herein, Employee shall be entitled to compensation earned by and invested in him
prior to the date of termination as provided in this Agreement, computed prorata
up to and including that date. Employee shall be entitled to:
(i) No further compensation, if terminated for
cause;
(ii) Severance pay as follows, if terminated for
reasons other than cause:
(A) Death benefit set forth in Section
10; or
(B) Severance payments of up to
eighteen (18) months or to the end of the contract, whichever is less, at
Employee's base salary, without benefits, payable monthly or semi-monthly at the
Company's option, if Employee is terminated for permanent disability, as set
forth in Section 9(a)(2)(ii); or
(C) Severance payments of up to six (6)
months or to end of the contract, whichever is less, at Employee's base salary,
without benefits, payable monthly or semi-monthly at the Company's option, if
Employee is terminated for failure to fulfill job functions, after notice, as
set forth in Section 9(a)(2)(iii).
10. DEATH. In the event of the death of Employee during the term
hereof, this Agreement shall terminate as of the date of death, without further
obligation or liability of either party to the other, except as follows:
(a) The Company agrees to pay a sum equal to Employee's
annual compensation prorated for a period of thirty days after the date of his
death to his surviving spouse or other surviving designee, such sum shall be
paid to Employee's estate; and
(b) Company shall pay to Employee's surviving spouse or
other designee or Employee's estate life insurance proceeds equal to Employee's
current annual salary but in no event less than One Hundred Thousand Dollars
($75000,000.00).
11. COVENANT NOT TO COMPETE. While Employee is employed by the
Company, and while Employee is receiving severance payments pursuant to Section
9(d)(ii), Employee shall not, either alone or with others, directly or
indirectly, own, manage, operate or have any interest as an officer, director,
shareholder, employee, partner, consultant, agent or otherwise, in any business
enterprise situated anywhere in the United States of America, its territories or
possessions, which business is competitive with any of the Company's business
operations.
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It is agreed that in the event the covenants of Employee contained in
the preceding paragraph shall finally be determined by any court to be void or
unenforceable in any particular area or jurisdiction, and if such determination
is affirmed on appeal, if any, then the parties hereto shall consider such
covenants to be amended and modified so as to eliminate therefrom the particular
area or jurisdiction as to which such covenants are held to be void or otherwise
unenforceable, and as to all other areas and jurisdictions covered by such
covenants, the terms and provisions hereof shall remain in full force and effect
as originally written.
12. SOLICITING CUSTOMERS AND EMPLOYEES AFTER TERMINATION OF
EMPLOYMENT.
(a) Employee acknowledges and agrees that the names and
addresses of Employer's customers constitute trade secrets of Employer and that
the sale of unauthorized use or disclosure of any of Employer's trade secrets
obtained by Employee during his employment with Employer constitute unfair
competition. Employee further acknowledges that Employer's employees are a
valuable asset in the operation of Employer's business. Employee promises and
agrees not to engage in any unfair competition with Employer.
(b) For a period of one year immediately following the
termination of his employment with Employer, Employee shall not directly or
indirectly make known to any person, firm, or corporation the names or addresses
of any of the customers of Employer or any other information pertaining to them,
or call on, solicit, take away, or attempt to call on, solicit, or take away any
of the customers of Employer on whom Employee called or with whom Employee
became acquainted during his employment with Employer, either for himself or for
any other person, firm or corporation.
(c) For a period of one year immediately following the
termination of his employment with Employer, Employee shall not directly or
indirectly solicit, hire, recruit, or encourage any other employee of Employer
to leave the Employer or work for any person or entity that is in competition
with Employer.
13. INJUNCTIVE RELIEF. The parties recognize and acknowledge that
irreparable damage might result if Employee breaches Sections 8, 11 or 12.
Accordingly, the parties hereto agree that the obligations hereunder may be
enforced by injunctive relief.
14. WARRANTIES AND REPRESENTATION OF EMPLOYEE. Employee hereby
warrants and represents to the Company as follows:
(a) Employee's execution and delivery of this Agreement
do not violate or conflict with any provision of any document, instrument or
agreement (oral or written) to which Employee is subject.
(b) Employee agrees that all of the results of Employee's
services hereunder during the term of this Agreement shall be deemed to have
been accomplished in the course of Employee's employment hereunder and all
proprietary interest, if any, therein, shall, for all purposes, as between
Employee and the Company, its successors, licensees and assigns, belong to the
Company and be the Company's exclusive property.
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(c) Employee hereby agrees to indemnify and hold the
Company and its successors and assigns harmless of and from any and all loss,
damage, reasonable cost and expense, including, without limitation, reasonable
attorneys' fees, arising out of or in connection with the breach or violation of
any of the warranties, representations, covenants or agreements made by Employee
herein.
15. INSURANCE. The Company may secure in its own name or otherwise
and at its own expense, life, accident, disability or other insurance covering
Employee, or Employee and others, and Employee shall not have any right, title
or interest in or to any such insurance, other than rights as to life insurance
designation pursuant to Sections 6(c), 9(d)(ii)(B) and 10. If Employee shall be
required to assist the Company to procure such insurance, Employee agrees that
he shall submit to such medical and other examinations, and shall sign such
applications and other instruments in writing, as may be reasonably required by
the Company and any insurance company to which application for such insurance
shall be made. Employee represents and warrants that he knows of no physical
defect or other reason that would prevent the Company from obtaining insurance
on Employee without payment of extra premium and with exclusions.
16. ARBITRATION.
(a) Any controversy between Company and Employee
involving the construction or application of any of the terms, provisions or
conditions of this agreement, shall be submitted to arbitration on the written
request of either party served on the other.
(b) Arbitration shall comply with and be governed by the
provisions of the California Arbitration Act, Sections 1280 through 1294.2 of
the California Code of Civil Procedure, which is incorporated herein by
reference.
(c) The Arbitration shall be conducted before a Retired
Judge of the Los Angeles Superior Court, mutually agreed upon by the parties.
Should the parties be unable to agree on an arbitrator within five (5) days of
notice of the arbitration, either party may request that the Supervising Judge
of the Los Angeles Superior Court select a retired Los Angeles Superior Court
Judge to serve as Arbitrator.
(d) The cost of arbitration shall be borne by the losing
party or in such proportions as the arbitrator decides.
(e) The result of arbitration hereunder shall be binding
upon the parties.
17. ENTIRE AGREEMENT. This Agreement constitutes and embodies the
full and complete understanding and agreement of the parties with respect to
Employee's employment by the Company, and supersedes all prior understandings
and agreements, if any, whether oral or written between Employee and the
Company, and shall not be amended, modified or changed except by an instrument
in writing executed by the party to be charged.
18. SEVERABILITY. The invalidity or partial invalidity of one or
more provisions of this Agreement shall not invalidate any other provision of
this Agreement.
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19. WAIVER. No waiver by either party of any provision or
condition to be performed shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or any prior or subsequent time.
20. BINDING EFFECT. This Agreement shall inure the benefit of, be
binding upon and enforceable against, the parties hereto and their respective
heirs, successors, assigns and legal representatives.
21. CAPTIONS. The paragraph captions contained in this Agreement
are for purposes of reference only and shall not affect in any way the meaning
or interpretation of this Agreement.
22. NOTICES. All notices, requests, demands and other
communications required or permitted to be given hereunder shall be in writing
and shall be served personally, sent prepaid commercial overnight delivery
service, faxed with a copy mailed as well, or sent registered or certified mail,
return receipt requested, postage prepaid, addressed as follows (or to such
other address as a party shall specify to the other party in writing):
If to Company: SeaLife Marine Products, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx Xxxx, XX 00000
Attention: Xxxxxx XxXxxxxx
Fax: (000) 000-0000
With a copy to: Xxx X. Xxxxxx
Xxxxxxx, Xxxxxx & Xxxxxxxxx
Limited Liability Partnership
0000 Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx Xxxxx, XX 00000-0000
Fax: (000) 000-0000
If to Employee: X.X. Xxxxx
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
Notwithstanding anything to the contrary in this Section 22, either
party may, by written notice to the other, specify a different address for
notice purposes. Such notices, demands, or declarations shall be deemed
sufficiently served or given for all purposes hereunder, unless otherwise
specified in this contract, either (i) if personally serviced, upon such
service, (ii) if sent by fax or commercial overnight delivery service, upon the
next business day following such sending, or (iii) if mailed, three (3) business
days after the time of mailing or on the date of receipt shown on the return
receipt, whichever is first. Company and Employee each agree to notify the other
in writing of any change of their respective addresses within ten (10) days
after such change.
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23. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the law of the State of California applicable to
agreements made and to be performed in California.
24. COUNTERPARTS. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.
COMPANY:
SEALIFE MARINE PRODUCTS, INC.
a California corporation
By /s/ Xxxxxx XxXxxxxx
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Xxxxxx XxXxxxxx
President
EMPLOYEE:
/s/ X. X. Xxxxx
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X. X. Xxxxx
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