Exhibit 10.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, made and entered into as of the
1st day of July, 1996, by and between SHOWPOWER, INC., a California corporation
(hereinafter the "Employer"), and Xxxxxxx X. Xxxxxxxxx (hereinafter the
"Executive").
1. Employment. The Employer hereby employs the Executive and
the Executive hereby accepts employment upon the terms and conditions
hereinafter set forth.
2. Term. Subject to the provisions for termination as
hereinafter provided, the term of this Agreement shall begin on the date of
execution hereof and continue for a term of three (3) consecutive years.
3. Duties. Executive shall be appointed Executive Vice
President of the Company for the term of this Agreement and shall perform such
duties and responsibilities as may be assigned from time to time by the Board of
Directors of the Employer. Executive shall also be responsible for and perform
the duties described on Exhibit "A," attached hereto.
4. Compensation and Benefits. For services rendered by the
Executive under this Agreement, the Executive shall receive a base salary as set
forth on Exhibit "B", attached hereto. Executive shall also receive all benefits
including pension, group insurance and participation plans which the Employer' s
Board of Directors may adopt from time to time and make available to Employer's
employees generally, and any other benefits listed on Exhibit "B." Such salary
and benefits will be reviewed annually, and an increase may be granted in the
sole discretion of the Employer's Board of Directors. Employer recognizes that
Executive's current base compensation is twenty-five percent less than
Executive's previous compensation. Should Xxxxxxxx Xxxxxxxx or Xxxx Xxxxxxx
receive an increase in their respective base compensation, it is specifically
agreed that Employer shall provide Executive with a similar increase in his base
compensation, as determined by the Board of Directors, effective as of the same
date as Xxxxxxx or Xxxxxxxx'x increase, provided, however, in no event shall
this increase be required to exceed more than $35,000 per annum.
5. Additional Potential Bonus Compensation. For each fiscal
year of Employer, within sixty days of the end of each fiscal year, upon
conditions enumerated herein, Executive shall be entitled to bonus compensation
as determined in the sole discretion of the Board of Directors of Employer.
6. Business Expenses. Executive will be entitled to prompt
reimbursement of ordinary and necessary expenses incurred by the Executive in
performing the services contemplated hereunder, including all reasonable travel
and living expenses while away from home on business or at the request of and in
the service of Employer, provided that such
expenses are incurred and accounted for in accordance with the policies and
procedures for Employer, as may be modified from time to time by the Board of
Directors.
7. Inventions. In consideration of this Agreement and
Executive's continued employment with Employer, Executive hereby assigns to
Employer all discoveries, inventions, improvements and developments made or
conceived by him, alone or in collaboration with others, during and prior to his
employment, whether or not during regular working hours, and relating to any
methods, apparatus, products or components thereof, which, prior to the
termination of this Agreement are manufactured, sold, leased, used, or under
development by or pertain to the business of Employer. All such items are works
for hire and shall upon execution hereof become and remain the property of
Employer, its successors and assigns. Executive will disclose promptly in
writing to Employer all such discoveries, inventions, improvements and
developments and, at the request of Employer and at Employer's expense,
Executive will make, execute, and deliver all application papers, assignments or
instruments, and perform or cause to be performed such other lawful acts, as
Employer may deem necessary or desirable in making or prosecuting applications,
domestic or foreign, for patents, re-issues, and extensions thereof, and assist
and cooperate with Employer or its representative in any controversy or legal
proceedings relating to such discoveries, inventions, improvements and
developments, or to the patents which may be procured thereon. The obligations
of Executive shall survive any termination of this Agreement.
8. Termination. This Agreement may be terminated prior to the
scheduled expiration of its term as follows:
(a) The Employer may terminate this Agreement at any time
with good cause, whereupon all compensation to Executive shall cease
as of the effective date of termination. As used in this Paragraph 8,
the term "good cause" shall mean (i) dishonesty by Executive
detrimental to the best interests of Employer, (ii) continuing
inattention to or neglect of the duties to be performed by Executive,
(iii) willful disloyalty of Executive to Employer, (iv) the death or
disability of Executive, (v) conviction by a court of competent
jurisdiction of Executive in any fraud, or (vi) the imparting of any
material confidential information by Executive in violation of this
Agreement. Notwithstanding the foregoing, the Executive shall not be
deemed to have been terminated with "good cause" as defined by
subsections (i), (ii), (iii) or (vi) unless there has been a
determination by at least four (4) members of the Board of Directors
at a meeting held after at least five (5) days notice to the Executive
and an opportunity for him to appear thereat together with his
counsel. As used in this paragraph 8, the term "disability" shall mean
that the Executive has become physically or mentally incapable of
performing his duties for a period of 90 or more consecutive days.
(b) The Employer may terminate this Agreement at any time
without good cause, whereupon the Executive shall be entitled to
receive all compensation and benefits payable through the effective
date of termination plus a severance
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payment equal to the greater of (i) $172,500 or (ii) the base salary
payable to the Executive through the scheduled expiration date of this
Agreement.
(c) The Executive may terminate this Agreement at any time
upon thirty (30) days written notice to the Employer.
(d) Upon written agreement of the parties.
9. Disclosure of Information and Restrictive Covenants. It is
noted by the parties hereto that in the regular performance of the duties
encompassed by this Agreement, Executive will become familiar with and have
access to Employer's business methods and operation, its clients, customer lists
and accounts and its trade secrets and other confidential information
(collectively the "Information"). Therefore, as part of the consideration to
Employer for entering into this Agreement, the Executive hereby covenants and
agrees:
(a) That Executive shall hold the Information in strictest
confidence and shall not disclose to any person, firm or company, the
Information, or any part thereof, except where authorized by the
Employer, and shall not use the Information, or any part thereof, in
any way which shall be detrimental to the Employer, it being
understood that the Executive shall not use any such Information for
Executive's own benefit or the benefit of any other party, firm or
company.
(b) That the relationship between the Executive and the
accounts, customers and clients of Employer results in a unique and
special situation whereby the Executive is placed in a position to
either further the business of the Employer or to deleteriously affect
such business and, accordingly, during the term of this Agreement and
for a period of eighteen (18) months after the expiration or
termination of this Agreement, (i) the Executive shall not, in any way
or for any reason, encourage any customer, client or account of
Employer to sever or alter the relationship of such customer, client
or account with Employer; (ii) Executive shall not aid anyone else to
take or secure from Employer, its customers, clients or accounts;
(iii) directly or indirectly solicit, take away, divert, interfere or
conduct business with any account or customer of Employer with respect
to services or products which are competitive with those of the
Employer; or (iv) directly or indirectly, alone or with any third
party, solicit, hire or retain any person employed by the Employer (or
any person under contract as an independent contractor).
10. Extent of Services. Except as provided herein, the
Executive shall devote his entire working time, attention and energies to the
business of the Employer or to such other business as the Employer shall
designate. Except as provided herein, the Executive shall not, during the term
of this Agreement, be engaged in any other business activity whether or not such
business activity is pursued for gain, profit, or other pecuniary advantage,
except as otherwise
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specifically approved in writing by the Board of Directors of Employer. Employer
agrees however, for a period of one year from the date hereof, that Executive
may continue to devote such time, attention and energies as may be necessary to
permit a smooth transition of duties which Executive has performed for
Rock-It-Cargo, USA, Inc., Viscount Air Services, Inc., MVP Air Tours, Ltd.,
Trijet, Ltd., Xxxxxxx Xxxxxxxx Airmarketing U.S.A., Inc., Air Apparent, Inc.,
ACS Associates, Inc., Metro Transport, Inc. and Medical Resources International,
Inc. to other individuals, provided, however, that during such period Executive
shall devote not less than 40 hours per week to the affairs of Employer. It is
specifically agreed that Executive shall not be required to spend more than
sixteen calendar days in every thirty calendar day period outside New York City.
11. Employer's Employment Policies. Executive's employment
hereunder shall be subject to and governed by such employment practices and
polices as Employer may adopt at any time or from time to time that are not
inconsistent with the express terms of this Agreement.
12. Remedies. The remedies provided herein shall be deemed
cumulative, and the exercise of one shall not preclude the exercise of any other
remedy based upon any particular occurrence or contingency, nor shall the
specification of remedies herein exclude any rights or remedies at law or in
equity which may be available hereto, including any rights to damages or
injunctive relief. Executive acknowledges and agrees that the remedy at law for
breach of this Agreement, including the provisions under paragraph 9 above, is
inadequate because a breach would result in irreparable harm and damage to
Employer which cannot be adequately compensated by a monetary award, and the
covenants and restrictions contained in this Agreement are reasonable as to
scope and duration, and necessary, fundamental and required for the protection
of Employer's business. Accordingly, Executive agrees that Employer shall be
entitled to an ex parte temporary restraining order and preliminary injunction
for breach of this Agreement or such other form of injunctive or equitable
relief as may be used by any court of competent jurisdiction to restrain or
enjoin Executive from breaching any such covenant or restriction or to
specifically enforce this Agreement, and Employer shall not be required to post
any bond.
13. Executive's Restrictions. Executive represents and
warrants to Employer that there are no existing agreements or covenants
whatsoever which would inhibit or prevent Executive from entering into and
performing this Agreement and working for Employer.
14. Miscellaneous.
(a) Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing, and if sent by certified
mail to Executive's residence in the case of the Executive, or to its
principal office in the case of the Employer.
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(b) The waiver by the Employer of a breach of any provision
of this Agreement by the Executive shall not operate or be construed
as a waiver of any subsequent breach by the Executive.
(c) The rights and obligations of the Employer under this
Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of the Employer. This Agreement may not be
assigned by Executive.
(d) Employer shall be the owner of all discoveries, concepts,
ideas, processes, methods, formulas, techniques, trademarks, trade
names, copyrights, patents, improvements and know-how developed,
produced or conceived by Executive (either solely or jointly with
other persons) during the initial term and any renewal terms of this
Agreement, regardless of whether the same arise during the hours of
Executive's employment of with the use of Employer's facilities,
materials or personnel. Executive agrees, upon request, to execute any
and all documents necessary or desirable to evidence Employer's
ownership of any of such property or rights and to deliver copies of
any related items to Employer. All properties and rights of Employer
described in this subparagraph 14(d) shall be deemed to be within the
scope of the restrictions of Paragraph 9 of this Agreement.
(e) This Agreement contains the entire agreement of the
parties. This Agreement may not be changed orally but only by an
agreement in writing signed by the party against whom enforcement of
any waiver, change, modification, extension, or discharge is sought.
(f) In the event that any section, paragraph, sentence,
clause or phrase of this Agreement shall be declared invalid for any
reason, such invalidity shall not thereby affect the remainder of this
Agreement.
(g) This Agreement is to be governed by and construed under
the laws of the state of California, and the venue for such dispute
shall be in Los Angeles, California.
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IN WITNESS WHEREOF, the parties have executed this Employment
Agreement as of the date and year first above written.
Employer:
ATTEST:
SHOWPOWER, INC., a California
corporation, Employer
/s/ Xxxxxxx X. Xxxxxxxxx
------------------------------ By: /s/ Xxxxxxx X. Xxxxx
Secretary -------------------------
Chairman of the Board
/s/ Xxxxxxx X. Xxxxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxxxx
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EXHIBIT "A"
Additional Specific Duties
Executive shall be employed as the Executive Vice President
of the Employer. His duties shall include primary responsibility for legal
affairs, financing and accounting, structuring of international business
transactions, but not operations or marketing, and shall report directly to the
Chairman of the Board of the Employer.
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EXHIBIT "B"
COMPENSATION AND BENEFITS PACKAGE
Base Salary: $115,000 per year, payable in twenty-six equal
installments on every other Wednesday.
Automobile: Employer shall pay for the cost of reasonable and
proper parking of an automobile at 00xx Xx. xxx Xxxxx
Xxx. in New York, NY or a similar amount as an
automobile allowance upon Executive's request.
Other Benefits:
a. 401(K) Plan. Executive shall be eligible to participate in
Employer's 401(K) Plan. The vesting period under such plan shall commence as of
the first date of Employee's employment with the Company.
b. Health Insurance. Employer shall pay the premium cost of a
family under the Employer's group health plan with a full indemnity option.
c. Life Insurance. Employer shall pay for a policy of term
life insurance on Executive's life, with a minimum death benefit of ten times
Executive's base compensation. Executive shall have the right to designate the
owner and beneficiaries of such policy.
d. Professional Licenses. Employer shall pay the annual costs
for maintaining Executive's professional licenses in the States of New York and
Pennsylvania, including costs of registration and that necessary to fulfill
mandatory education costs. Should Employer request Executive to become a member
of the Bar of the State of California, or any other state, Employer shall bear
all costs related thereto.
e. Other Benefit Plans. If Employer shall, at any time during
the term hereof, commence any other benefit, stock option, bonus, or any other
type of incentive plan in which any employee of Executive shall have the
opportunity to participate, Executive shall have the right to participate in
such plan.
f. Vacation. Executive shall be entitled to receive four
weeks paid vacation per annum.
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