EXHIBIT 6.4
EMPLOYMENT AGREEMENT
This Agreement, entered into on the 27 day of June, 1992 (the "Agreement") by
and between XXXXXX CAPITAL CORPORATION, a Colorado corporation with its
principal office in Alameda, California (the "Company") and XXXXX XXXXX, 0000
Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx ("Xxxxx").
1. Employment. The Company hereby employs Xxxxx, and Xxxxx hereby accepts
employment with the Company, upon the terms and conditions set forth herein. The
Company and Xxxxx hereby agree that this Agreement shall hereinafter govern
their relationship and their respective rights and obligations under this
Agreement. The parties acknowledge that Xxxxx has heretofore entered into a
substantially identical employment agreement with ValueStar, Inc., a California
corporation which is an Affiliate of the Company, dated as of May 1, 1992 (the
"ValueStar Employment Agreement"). The parties intend that this Agreement shall
be coterminus with and expire at the same time, and on the same terms, as the
ValueStar Employment Agreement.
2. Term of Employment. This Agreement will be effective as of and from the date
first above written and shall terminate at the same time and for the same
reasons as the ValueStar Employment Agreement.
3. Duties of Xxxxx. Xxxxx will be employed by the Company as its Chief Executive
Officer and President and shall serve as Chairman of the board of directors, and
shall have such duties and shall serve in such capacity and in such other
capacities at the Company or any of its Affiliates as shall be designated, or to
which Xxxxx shall be elected, from time to time, by the Board of Directors of
the Company ("Board") and in accordance with the bylaws of the Company as in
effect from time to time.
4. Extent of Services; Right to Name, etc. (a) Xxxxx will devote his full time
and attention exclusively to the business of the Company and its Affiliates in
the advancement of the best interests of the Company and such Affiliates. Xxxxx
may, however, devote such time to his personal investments as shall be necessary
and which do not interfere with the performance of his duties hereunder.
(b) Xxxxx hereby grants to the Company and its Affiliates the non-exclusive
right to use his name, picture or other likeness and biographical material
concerning him, in connection with advertising, promotion and publicizing the
Company and its activities, so long as this Agreement is in effect. Such use of
Xxxxx'x name shall be fair and not misleading or unflattering, and Xxxxx will be
allowed to review and approve all such uses prior to actual use or
publicization.
5. Expenses. The Company will reimburse Xxxxx (against receipt vouchers or other
evidence of payment) for all ordinary, necessary and reasonable expenses
incurred by him in the performance of his duties under this Agreement or in
performing such duties prior to execution of this Agreement.
6. Compensation. During the Term of this Agreement, Xxxxx will receive a monthly
salary at the rate of ONE DOLLAR $1.00, payable at the end of each month. This
salary shall not be increased except upon Board approval, and any compensation
paid hereunder shall be in addition to and shall not reduce any compensation
paid to Xxxxx pursuant to the ValueStar Employment Agreement or otherwise.
7. Incapacity of Xxxxx. If Xxxxx shall, at any time, be incapacitated or
prevented by physical or mental disability or any other circumstances beyond his
control from performing his duties under this Agreement for a consecutive period
of at least 6 months, the Company may, by written notice to Xxxxx given at any
time after such 6-month period and so long as the incapacity shall continue,
discontinue payment in whole or in part of the compensation provided for herein
from such date as may be specified in the notice until the incapacity of Xxxxx
shall cease. Otherwise, the said payment shall, notwithstanding the incapacity
of Xxxxx, continue to be paid to Xxxxx in accordance with the foregoing
provisions; provided, that if Xxxxx shall receive any amount during the time of
such incapacity by reason of any disability insurance or any other insurance
plan, senior executive loss or income policy, disability policy or any other
plan or scheme of a like nature funded by the Company, the payment above
provided may be reduced by a like amount.
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8. Relationship of the Parties. Xxxxx will perform his duties as an employee of
the Company and is not, nor will he be deemed to be, a joint venturer or partner
with the Company or any Affiliate thereof, and nothing in this Agreement will be
construed so as to make him a joint venturer or partner with the Company or
Affiliate.
9. Termination of Agreement. This Agreement shall terminate at the same time and
may be terminated by a party upon the same grounds as the ValueStar Employment
Agreement. Upon termination of this Agreement for any reason, Xxxxx shall not be
entitled to severance pay or damages, except as provided in the ValueStar
Employment Agreement. On the effective date of termination of this Agreement,
Xxxxx will deliver to the Company, in a reasonable state of repair, all property
of the Company, both real and personal owned, leased or bailed to Xxxxx and used
by or in the possession of Xxxxx.
10. Indemnification of Xxxxx. Xxxxx shall be indemnified to the same extent as
set forth in the ValueStar Employment Agreement.
11. Confidential Information. Xxxxx will not, during or after the Term of this
Agreement, disclose to any firm or person any confidential or non-public
information, except as otherwise required by law, as necessary in the ordinary
course of the Company's business, or with prior written consent of the Company,
including but not limited to information about the Company or any Affiliate, and
the operations, products, assets, and customers thereof, to which Xxxxx has
gained or gains excess by reason of his position as an employee of the Company
or an Affiliate. Xxxxx shall not use for his own purposes, or for any purpose
other than those of the Company or an Affiliate, any information he may acquire
with respect to the Company's or an Affiliate's affairs.
12. Non-Competition Covenant. While this Agreement is in full force and effect
and has not expired, has not been terminated or otherwise been canceled or
annulled and for a period of 2 years following the termination of this
Agreement, Xxxxx shall not, directly or indirectly, whether individually or as
controlling owner, officer, director, employee, shareholder, investor,
consultant, agent or in any other capacity whatsoever, own, manage, work for,
participate in the activities of, any person, firm, business or venture or any
part thereof in the United States of America which competes with the Company or
any Affiliate of the Company in its or their capacity as a research company,
rating company or licensor of certification marks. If the scope of this Section
(covering the entire United States of America) shall be deemed too broad or
otherwise impermissible by any court of competent jurisdiction or arbitration
panel, then the area subject to this non-competition covenant shall be deemed
limited to the Standard Metropolitan Statistical Areas in which the Company or
any Affiliate is carrying on operations.
Xxxxx acknowledges that this covenant is valid, necessary and fundamental to the
protection of the Company and its Affiliates, and is reasonable in the
circumstances, including the fact that the Company intends for itself and its
Affiliates to operate nationwide and establish is services and trademarks and
service marks nationwide. The salary payable to Xxxxx as provided for herein
includes the entire consideration for Xxxxx'x covenant in this Section.
13. Right to Injunctive Relief. Xxxxx acknowledges that the Company will suffer
irreparable injury, not readily susceptible of valuation in monetary damages, if
Xxxxx breaches any of his obligations under Sections 11 or 12 above.
Accordingly, Xxxxx agrees that the Company will be entitled to injunctive relief
against any breach or prospective breach by Xxxxx of Xxxxx'x obligations under
Sections 11 or 12 in any Federal or State court of competent jurisdiction
sitting in the State of California. Xxxxx hereby submits to the jurisdiction of
such courts for the purposes of any actions or proceedings instituted by the
Company to obtain such injunctive relief, and agrees that the process may be
served on Xxxxx by registered mail, addressed to the last address of Xxxxx known
to the Company, or in any other manner authorized by law.
14. Notices. Any notice under this Agreement must be given in writing and must
be delivered by a messenger or courier service which retains its delivery
receipts, sent by telex, telegram or facsimile transmission ("fax") or mailed by
first class mail, postage prepaid, and addressed to the party to which notice is
to be given at such party's address indicated below or at such other address as
may be hereafter designated in writing to the other party in accordance with the
notice provisions herein contained. If notice is sent by telex, telegram or
facsimile transmission, it will be deemed to have been given at the time of
transmission, and if by delivery, at the time delivered. If notice is mailed, it
will be deemed to have been received 5 business days following the date of
mailing of the notice. Notice should be sent to
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if to the Company: 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Secretary
if to Xxxxx: 0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
with a copy to: Xxxxx Xxxxxxx, Esq.
Xxxx, Xxxxx & Xxxx
0 Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
15. No Assignment. This Agreement may not be assigned in whole or in part by any
party without the written consent of the other party, which consent may not be
unreasonably withheld.
16. Miscellaneous.
(a) Xxxxx represents and warrants to the Company that there is no restriction or
limitation, by reason of any agreement or otherwise, upon Xxxxx'x right or
ability to enter into this Agreement and fulfill his obligations under this
Agreement.
(b) The provisions of Sections 10,11,12 and 13 will survive the termination or
expiration of this Agreement. All other obligations of the Company and Xxxxx
will cease on termination or expiration of this Agreement, except that the
Company and Xxxxx remain liable for obligations which accrued before termination
or expiration of this Agreement (including Xxxxx'x right to be indemnified or
paid or reimbursed for services rendered and expenses incurred before
termination or expiration of this Agreement).
(c) This Agreement sets forth the entire understanding of the parties and may
not be varied by any statement, representation, warranty or covenant not set
forth in this Agreement.
(d) This Agreement may not be modified or amended except by an instrument in
writing signed by the parties to this Agreement or, where applicable, by their
heirs, representatives, successors or permitted assigns.
(e) This Agreement will be governed by and construed in accordance with the laws
of the State of California and the parties agree that the courts of such state
shall have exclusive jurisdiction to determine any disputes arising hereunder.
(f) This Agreement shall be binding upon and enure to the benefit of the parties
hereto and their respective heirs, executors, successors, administrators and
permitted assigns.
(g) The term "Affiliate" as used herein shall mean every parent and subsidiary
corporation of the Company, and every corporation or other entity which owns
thirty percent or more of the Company or of which the Company owns thirty
percent or more, of the equity ownership interest.
IN WITNESS WHEREOF the parties hereto have hereunto affixed their respective
hands and seals as of the day and year first above written.
XXXXXX CAPITAL CORPORATION XXXXX XXXXX
/s/ XXXXX XXXXX /s/ XXXXX XXXXX
By Xxxxx Xxxxx, President Signature
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