EXHIBIT 10.18
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is entered into
as of December 2, 1999, between Adrenalin Interactive, Inc., a Delaware
corporation (the "Company") and XXXX XXXX, an individual ("Executive"), with
reference to the following.
RECITALS
A. The Company is hereby defined as the combined corporation
after the merger between Adrenalin Interactive, Inc., a Delaware corporation
("Adrenalin"), and McGlen Micro Inc., a California corporation. ("McGlen"),
whereby McGlen will be a wholly owned subsidiary of the Company and McGlen's
shareholders will own 87.5% of the Company (the "Merger").
B. The Company is in the business of selling computer components
and accessories via internet.
C. Executive is experienced in the development of start-up and
emerging growth companies in the computer industry.
E. The Company desires to employ Executive as the Vice President
of Business Development and Executive desires to accept such employment subject
to the terms and conditions set forth in this Agreement.
.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing premises, the
provisions set forth below, and other good and valuable consideration, the
parties agree as follows.
1. Employment. The Company hereby employs Executive as the
Company's Vice President of Business Development, and Executive hereby accepts
such employment, for the term and subject to the provisions set forth below.
2. Term. Unless sooner terminated as set forth below, this
Agreement shall remain in force for a period of three (3) years (the "Term")
commencing on the date hereof. The actual period of time that Executive remains
in the employ of the Company pursuant to this Agreement is referred to herein as
the "Employment Period."
3. Duties. During the Employment Period, Executive shall be
employed as the Vice President of Business Development of the Company and shall
hold such other offices or positions with the Company as may be reasonably
requested by the Company from time to time. Executive shall also serve as a
member of the Company's Board of Directors if so requested or elected. Executive
shall use his reasonable efforts to manage the Company's business and affairs
for the maximum benefit of the Company. Nothing in this Agreement shall be
construed to prohibit Executive from acting as an officer or director of any
other corporation. In addition to the normal duties associated with the position
of Vice President of Business Development of companies of similar size,
Executive shall have the following specific duties, which he shall at all times
faithfully, industriously and to the best of his ability perform.
(i) Direct assistance and oversight of all
aspects of the Company's business development, marketing and sales practices and
requirements, including inventory control, customer orders, customer service,
internal control, invoicing, purchasing and borrowing compliance and reporting
requirements. The duties shall include market analysis, formulating new business
ideas, supervising sales and marketing staff, taking a hands-on approach to
ensure that work in each of the aforementioned areas is performed efficiently
and at a high standard and focusing on identifying and implementing internal
sales and marketing control policies and procedures to ensure that customer
sales and vendor purchases are recorded timely, accurately and in compliance
with authorized contract terms.
(ii) Assist in the preparation and continued
update and maintenance of a strategic business plan for the Company, which
incorporates sales and marketing strategies, budgets, financial forecasts,
marketing plans into the business plan.
(iii) Make professional recommendations concerning
future business, operating, sales, marketing, and financial performance targets.
(iv) Maintain primary relationships with vendors,
and customers.
(v) Maintain familiarity with all of the
Company's sales, marketing, and financial compliance requirements, as may be
revised from time to time.
(vi) Oversee the Company's sales, marketing, and
purchasing staff. Direct the preparation of supporting information to expedite
the timing and minimize the cost of the purchasing.
(vii) Meet regularly with the executive management
and the Board of Directors. Communicate clearly and effectively on all sales and
marketing matters concerning the Company.
(b) Additional Duties.
The Company and Executive acknowledge that the
Company currently has a limited number of customers and limited number of
suppliers. The duties of Executive to internally organize the sales and
marketing staff may not require Executive's full time, every day. Executive
shall therefore also assist the Company as operations officer. As such,
Executive will be expected to play a large role in the day to day operation of
the Company, and assist in the following areas.
(i)
Assist in the management, supervision,
training and review of the Company's marketing and sales personnel.
(ii) Assist the Company's President or CEO in the
preparation and periodic review and update of the Company procedures and
policies.
(iii) Assist the Company's President or CEO with
shareholder relations matters.
4. Compensation.
a. Base Monthly Salary. The Company shall pay Executive
a base annual salary of $80,000 (the "Base Salary") during the Employment
Period.
b. Vacation. Executive shall be entitled to four weeks
paid vacation per year in addition to all holidays recognized by the Company.
Executive shall be entitled to accrue vacation or cause the Company to
repurchase unused vacation days at the Salary level then applicable.
c. Medical Insurance. The Company shall provide
Executive and Executive's spouse and children with medical insurance. At the
Company's election, the Company may reimburse Executive for the cost of such
insurance obtained by Executive.
d. Expenses. Executive shall be entitled to
reimbursement during the Employment Period for travel and other out-of-pocket
expenses incurred in the performance of his duties hereunder, upon submission
and approval of written statements and bills in accordance with the then regular
procedures of the Company. Executive shall also receive a credit card from the
Company to be utilized for expenses incurred by Executive.
5. Performance-Based Bonus. As additional compensation, Executive
shall be entitled to receive an annual bonus (the "Bonus") as is determined by
the Board of Directors for each fiscal year based on the Executive's
performance.
6. Stock Option Plan. The Company shall adopt a Stock Option Plan
for the benefit of its employees including Executive. As may be determined by
the Board of Directors within its discretion, Executive may receive option to
purchase shares of the Company's common stock.
7. Termination. The Employment Period shall be immediately and
automatically terminated upon Executive's death. The Employment Period shall
also terminate under the following conditions.
a. Termination for Cause. Notwithstanding anything in
this Agreement to the contrary, the Company may terminate Executive's employment
hereunder at any time if Executive:
(i) Is convicted of, or pleads guilty or nolo
contendere to (i) any felony, or (ii) any misdemeanor involving moral turpitude;
(ii) Commits fraud or dishonesty with respect to
the business or affairs of the Company and embezzles or misappropriates any of
the Company's funds or assets;
(iii) Is in material breach of this Agreement,
including, without limitation, his insubordination to the Company;
(iv) In the reasonable opinion of a licensed
physician or psychiatrist retained by the Company, is substantially unable by
reason of drug (including alcohol) abuse or addiction, to reasonably and
effectively carry out Executive's duties hereunder for any period of time in
excess of Executive's accrued vacation time and sick leave, if any;
(v) Directly causes the material default of the
Company in performing its obligations under contracts with other persons or
business entities intentionally and without authorization; or
(vi) Is grossly negligent with respect other
discharge of Executive's duties hereunder.
Executive agrees to timely submit to reasonable and necessary
medical, physical and psychiatric examination from time to time during the
Employment Period to enable the Company to determine if Executive is incompetent
or subject to any mental or physical illness or incapacity or to drug abuse or
addiction, as contemplated above by paragraphs 7a(iii) and 7a(iv).
b. By Permanent Disability. The Term of Employment shall
terminate, without liability except as provided in this Section 8b, upon the
"Permanent Disability" of Executive. "Permanent Disability" shall mean, with
respect to Executive, (i) the suffering of any mental or physical illness,
disability or incapacity to the extent that Executive shall be unable to perform
his duties or (ii) the absence of Executive from his employment by reason of any
mental or physical illness, disability or incapacity for a period of three
months during any six-month period; provided, however, in either case, that such
illness, disability or incapacity shall be determined to be of a permanent
nature by a licensed physician selected by the Board of Directors. The
termination date in the event of a clause (i) of the immediately preceding
sentence, shall be the date of determination by the physician, and in the case
of clause (ii) of the immediately preceding sentence, the last day of such
three-month period. In the case of Permanent Disability, the Company shall
promptly pay to Executive (or his representative) the sum of (A) the unpaid Base
Salary to which he is entitled pursuant to Section 4(a) through the termination
date and (B) the lump sum amount of any unpaid portion of the bonuses to be paid
pursuant to Section 5, and all benefits under Executive's Disability Insurance
Plan.
c. By The Company Without Cause. The Term may be terminated by
the Company without "Cause" provided the Company pays to Executive at the time
of termination the full amount of all salary due to Executive through the end of
the Term. The Company shall also pay Executive the equivalent of any bonus he
would have earned if he had remained employed by the Company, payable at the
time such bonus would be earned, plus all unused employment benefits.
8. Affirmative Covenants. Executive promises and covenants to the
Company as follows.
(a) Confidentiality; Trade Secrets. Executive acknowledges
that his position with the Company is one of the highest trust and confidence
both by reason of his position and by reason of his access to and contact with
the trade secrets and confidential and proprietary business information of the
Company. Executive agrees that during the Term and thereafter:
(i) Executive shall use his best efforts and
exercise utmost diligence to protect and safeguard the trade secrets and
confidential and proprietary information of the Company, including, its data,
record, compilations of information, processes, programs know-how, improvements,
discoveries, marketing plans, strategies, forecasts, unpublished financial
statements, budgets, projections, licenses, prices, costs, files, documents,
drawings, memoranda, notes or other documents, whether maintained electronically
or in any other manner, relating to the business of the Company or its
contractors; (all such information is hereinafter called the "Proprietary
Information") other than information known to him before, learned from third
parties not associated with the Company or in the public domain;
(ii) Executive shall not disclose any of such
Proprietary Information, except as may be required in the ordinary course of
performing his duties to the Company or any affiliated companies;
(iii) Executive shall not use the trade secrets
and confidential and proprietary information of Executive's previous or present
employer to carry out his duties and responsibilities under this Agreement or
bring on to the Company's premises or any other property owned by the Company
any proprietary information of any other entity, in violation of any prior or
present employment, or noncompetition or confidentiality agreement.
(b)
Remedies for Breach of Affirmative Covenants of
Executive. (i) Subject to the limitations provided by applicable law, the
covenants set forth in this Section 9 shall continue to be binding upon
Executive in accordance with their terms, notwithstanding the termination of his
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employment with Company for any reason whatsoever. Such covenants shall be
deemed and construed as separate agreements independent of any other provisions
of this Agreement and any other agreement between the Company and Executive. The
existence of any claim or cause of action by Executive against the Company,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by the Company of any or all of such covenants in
accordance with their terms; and
(ii) The parties hereby agree that any breach or
threatened breach of Section 9 of this Agreement will cause substantial and
irreparable damage to the other in an amount and of a character difficult to
ascertain. Accordingly, for their mutual benefit and to prevent any such breach
or threatened breach, and in addition to any other relief to which a party may
otherwise be entitled, the non-breaching party shall be entitled to immediate
temporary, preliminary and permanent injunctive relief through appropriate legal
proceedings, without proof that actual damages have been incurred or may be
incurred by such a party with respect to such breach or threatened breach. The
parties expressly agree that the party seeking this relief shall not be required
to post any bond or other security as a condition to obtaining any injunctive
relief pursuant to this Section and each of the parties expressly waive any
rights to the contrary.
(c) Litigation. Executive agrees that during the Term and
thereafter as reasonably requested by the Company, Executive shall do all
things, including the giving of evidence in suits and other proceedings, which
the Company shall deem reasonably necessary or proper to obtain, maintain,
defend or assert rights accruing to the Company during the Term and in
connection with which Executive has knowledge, information and expertise.
(d) Future Cooperation. The parties hereto agree to cooperate
with each other without additional compensation from and after the date hereof,
to supply any information and to execute documents reasonably required for the
purpose of giving effect to this Agreement, or in connection with the
consummation of any actions contemplated hereby.
9. Representations and Warranties of Executive. Executive represents
and warrants to the Company that: (i) Executive is under no contractual or other
restriction or obligation that is inconsistent with the execution of this
Agreement, the performance of Executive's duties hereunder or any of the rights
of the Company hereunder; and (ii) Executive is under no physical or mental
disability that would impair the performance of Executive's duties under this
Agreement.
10. Indemnification. The Company shall indemnify, defend and hold
Executive harmless for, from and against any and all liability of any kind or
nature resulting from or related to Executive's employment with the Company,
and/or any prior business deals entered into by Executive.
11. Notices. All notices, requests, demands or other communication
(collectively, "Notice") given to any party pursuant to this Agreement shall not
be effective unless given in writing and addressed to the parties at their
respective addresses as set forth below.
If to the Company: Adrenalin Interactive, Inc.
0000 Xxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
If to Executive: Xxxx Xxxx
00 Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Notice shall be deemed duly given when delivered personally or by telegram,
telex or courier, or, if mailed, 48 hours after deposit in the United States
mail, certified mail, postage pre-paid. The addresses of the parties for the
purpose of providing Notice pursuant to this paragraph may be changed from time
to time by Notice to the other party duly given in the foregoing manner.
12. Governing Law; Disputes. This Agreement will be interpreted in
accordance with California law, including all matters of construction, validity,
performance and enforcement, without giving effect to any principles of conflict
of laws. Any dispute or proceeding concerning this Agreement will be resolved by
binding arbitration to be held in Orange County, California. Any party may
demand arbitration through written notice sent by certified mail to the other
(an "Arbitration Demand"). Within fifteen (15) days after the date that the
Arbitration Demand is first mailed, each of the parties will confer to select a
mutually acceptable arbitrator from the Judicial Arbitration and Mediation
Service ("JAMS"). If the arbitrator so selected is unavailable, the parties will
confer to select another arbitrator. If the parties cannot mutually agree to the
selection of an arbitrator, or if one party refuses to participate in the
selection process, JAMS will appoint an arbitrator. The arbitrator will be
governed by the provisions of this Agreement rather than the rules of JAMS.
If JAMS is unable or unwilling to select an arbitrator, the
Presiding Judge of the Orange County Superior Court will select an arbitrator
upon the request of either party, and such selection will be binding on the
parties. The arbitrator so selected will schedule the arbitration hearing within
sixty (60) days after he or she is first selected. The parties will be permitted
written discovery and one deposition each. The arbitrator will have authority to
enter a binding judgment even if the parties do not appear at the arbitration
and may also grant any remedy or relief that the arbitrator reasonably believes
to be just or appropriate, provided that such remedy or relief is within the
scope of this Agreement.
All fees and expenses of the arbitration will be paid equally
by the parties participating in the arbitration. At the conclusion of the
arbitration, the arbitrator will award the prevailing party reasonable costs and
Attorneys' Fees, including all arbitration costs. If the arbitration award is
made, the prevailing party may convert the award into a judgment and execute
upon that judgment.
13. Attorneys' Fees. If any arbitration, litigation, action, suit
or other proceedings is instituted to remedy, prevent or obtain relief from a
breach of this Agreement, in relation to a breach of this Agreement or
pertaining to a declaration of rights under this Agreement, the prevailing party
will recover all such party's attorneys' fees incurred in each and every such
action, suit or other proceeding, including any and all appeals or petitioner
therefrom. As used in this Agreement, Attorneys' Fees will be deemed to be the
full and actual costs of any legal services actually performed in connection
with the matters involved, including those related to any appeal or the
enforcement of any judgment, calculated on the basis of the usual fee charged by
attorneys performing such services, and will not be limited to "reasonable
attorneys' fees" as defined in any statute or rule of court.
14. Amendments/Waivers. This Agreement may be amended,
supplemented, modified or rescinded only through an express written instrument
signed by all the parties or their respective successors and assigns. Either
party may specifically and expressly waive in writing any portion of this
Agreement or any breach hereof, but no such waiver shall constitute a further or
continuing waiver of any preceding or succeeding breach of the same or any other
provision. The consent by one party to any action for which such consent was
required shall not be deemed to imply consent or waiver of the necessity of
obtaining such consent for the same or similar acts in the future.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
16. Severability. Each provision of this Agreement is intended to
be severable and if any term or provision herein is determined invalid or
unenforceable for any reason, such illegality or invalidity shall not affect the
validity of the remainder of this Agreement and, wherever possible, intent shall
be given to the invalid or unenforceable provision.
17. Entire Agreement. This Agreement contains the entire and
complete understanding between the parties concerning its subject matter and all
representations, agreements, arrangements and understandings between or among
the parties, whether oral or written, have been fully merged herein and are
superseded hereby.
18. Remedies. All rights, remedies, undertakings, obligations,
options, covenants, conditions and agreements contained in this Agreement shall
be cumulative and no one of them shall be exclusive of any other.
19. Assignment. Neither this Agreement, nor any interest herein,
shall be assignable (voluntarily, involuntarily, by judicial process or
otherwise) Executive to any person or entity without the prior written consent
of the Company. Any attempt to assign this Agreement without such consent shall
be void and, at the option of the Company, shall be an incurable breach of this
Agreement resulting in the termination of this Agreement.
20. Successors. Subject to the foregoing paragraph, this Agreement
shall be binding upon and inure to the benefit of the parties and their
respective heirs, legatees, legal representatives, successors and permitted
assigns.
21. Interpretation. The language in all parts of this Agreement
shall be in all cases construed simply according to its fair meaning and not
strictly for or against any party. Whenever the context requires, all words used
in the singular will be construed to have been used in the plural, and vice
versa, and each gender will include any other gender. The captions of the
paragraphs of this Agreement are for convenience only and shall not affect the
construction or interpretation of any of the provisions herein.
22. Benefit of Agreement. This Agreement is for the sole and
exclusive benefit of the signators hereto and nothing in this Agreement shall be
construed to give any person or entity other than the parties hereto any legal
or equitable right, claim or remedy.
23. Limitation on Actions. Any claim, dispute, controversy or
action for breach relative to this Agreement must be brought and legal process
or arbitration, as the case may be, initiated within one year after the cause of
action for such claim first accrued or the breach first occurred, whichever is
sooner.
24. Miscellaneous. The recitals and all exhibits, attachments or
other documents referenced in this Agreement are fully incorporated into this
Agreement by reference. Unless expressly set forth otherwise herein, all
references herein to a "day," "month," or "year" shall be deemed to be a
reference to a calendar day, month or year, as the case may be. All
cross-references herein shall refer to provisions within this Agreement, and
shall not be deemed to be references to the overall transaction or to any other
agreement or document.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.
"EXECUTIVE"
XXXX XXXX, an individual
"THE COMPANY"
ADRENALIN INTERACTIVE, INC.,
a Delaware corporation
By:/s/Xxxxxx Xxx
----------------
Xxxxxx Xxx,
Chief Executive Officer
