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Exhibit 10.23
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made this 1st day of
August, 1999, by and between NEW DIRECTIONS MANUFACTURING, INC., a Nevada
corporation with offices located at 0000 Xxxx Xxxxxxxx, Xxxxxxx, Xxxxxxx 00000
("Employer"), and XXXX X. XXX, a natural person ("Employee") (collectively, the
"Parties").
PREMISES
WHEREAS, Employer is in the business of manufacturing, distributing and
marketing contemporary oak wood furniture throughout the United States and
Canada;
WHEREAS, Employee has the requisite skills and experience to manage a
company in a business such as Employer and desires to enter into a written
agreement to serve as President and Chief Executive Officer of Employer; and
WHEREAS, Employer desires to secure the services of Employee pursuant
to the terms and conditions of an employment agreement and to protect its
interest by obtaining certain covenants from Employee.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the Parties agree as follows:
1. Employment. Employer employs Employee and Employee accepts
employment as President and Chief Executive Officer of Employer upon the terms
and conditions set forth in this Agreement.
2. Term. The term of this Agreement shall commence August 1, 1999
(the "Effective Date"), and shall continue until the close of business on
December 31, 2002 (the "term"). This Agreement may be renewed at the end of the
term for an additional term upon the written agreement of the Parties. If there
is no written agreement for any additional term(s) then Employee's employment
will continue on a month to month basis subject to termination pursuant to the
terms of this Agreement.
3. Compensation. In consideration of the services rendered to
Employer by Employee during the term of this Agreement, Employer shall provide
Employee the following compensation:
a. Monthly Salary.
i. From the period beginning on August 1, 1999
and ending upon the close of business on December 31, 1999, Employer shall pay
Employee a salary at the monthly rate of $7,153.80 (the "Monthly Salary"), such
salary to be subject to all applicable local, state and federal withholding
taxes, fees, and other assessments. The Monthly Salary shall be payable to
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Employee in accordance with the normal payroll practices of Employer then in
effect. Employee shall be solely responsible for income taxes, fees or other
assessments imposed on employee by reasons of any cash or non-cash compensation
and benefits provided by this Agreement.
ii. From the period beginning on January 1, 2000
and ending upon the close of business on December 31, 2002, Employer shall pay
Employee a salary at the monthly rate of $8,333.00 (the "Monthly Salary"), such
salary to be subject to all applicable local, state and federal withholding
taxes, fees, and other assessments. The Monthly Salary shall be payable to
Employee in accordance with the normal payroll practices of Employer then in
effect. Employee shall be solely responsible for income taxes, fees or other
assessments imposed on employee by reasons of any cash or non-cash compensation
and benefits provided by this Agreement.
b. Other Compensation. In addition to the Monthly
Salary, Employee shall be entitled to the following:
i. all legal and religious national holidays,
and 21 days paid vacation/sick leave per annum commencing in the first year of
this Agreement. All vacation time and paid sick leave shall be earned on a
trimester basis. Employee shall arrange for vacations in advance at such time or
times as shall be mutually agreeable to Employee and Employer. Employee may not
receive pay in lieu of vacation/sick leave;
ii. participation in a bonus plan to be
established by Employer;
iii. participation in all employee benefit plans
and arrangements adopted by Employer and provided to Employee relating to
pensions, hospital, medical, dental, disability and life insurance, deferred
salary and savings plans, and other similar employee benefit plans or
arrangements (each, an "Employee Benefit Plan"), to the extent that Employee
meets the eligibility requirements for any such Employee Benefit Plan in
accordance with the provisions of each Employee Benefit Plan as in effect from
time to time; provided, however, that nothing in this paragraph shall require
Employer to provide health or medical insurance benefits to Employee or any
dependent of Employee with respect to any condition existing prior to the
Effective Date of this Agreement, except as may be covered by Employer's health
and medical insurance plans sponsored for employees in general; and
iv. payment or reimbursement by Employer for
budgeted expenses incurred by Employee in connection with the performance by
Employee of his duties under this Agreement in accordance with Employer's
policies and practices for reimbursement of such expenses with respect to
Employer's practices for reimbursement of such expenses with respect to
Employer's executive officers (e.g. class of travel, hotel, spousal travel
allowances, etc.), as in effect from time to time, including, without
limitation, reasonable and necessary travel, lodging, entertainment and meals
incurred by Employee in furtherance of Employer's business and at Employer's
request (including, without limitation, expenses associated with any required
travel exceeding 100 miles measured from Employer's current principal place of
business in Phoenix, Arizona).
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4. Duties. During the term of this Agreement, Employee shall
initially serve as the President and Chief Executive Officer of Employer.
Employee shall perform the tasks and have the rights, powers and obligations
normally associated with the offices of President and Chief Executive Officer.
Subject to Employee's consent and agreement, such agreement not to be
unreasonably withheld by Employee, Employee agrees to serve in such other
offices or positions with Employer that Employer's Board of Directors shall
reasonably request.
a. Throughout the term of this Agreement, Employee shall
devote his full business time, best efforts, attention and skill to, and shall
perform faithfully, loyally and efficiently his duties as president of Employer.
Employee will not, without the prior written approval of the Board of Directors,
engage in any other business activity which would interfere with the performance
of Employee's duties, services and responsibilities or which is in violation of
either the terms of this Agreement or the policies established from time to time
by Employer (unless specifically permitted by this Agreement or other writing
signed by or on behalf of Employer); and
b. Employee will punctually and faithfully perform and
observe any and all rules and regulations which Employer may now or shall
hereafter reasonably establish governing Employee's conduct and the conduct of
Employer's business which are consistent with this Agreement.
5. Extent of Services/Conduct. Employee may perform services for
other organizations and volunteer for one or more charitable organizations
provided that, in the reasonable judgment of the Board of Directors, such
services do not interfere and are not inconsistent with Employee's duties and
obligations under this Agreement. Employee may invest his assets in such form or
manner as will not require his services in the operation of the affairs of the
companies in which such investments are made, and provided further that Employee
shall not make a "direct" investment in any specific company which, in the
reasonable judgment of the Board of Directors, is in direct competition with the
business of Employer. For the purposes of this Section 5, an investment in a
mutual fund registered under the Investment Company Act of 1940, as amended,
shall not be considered a "direct" investment in any specific company. Employee
pledges his careful avoidance of all persona acts, habits, usages, and statement
which might injure, in any manner, directly or indirectly, the personal or
business or reputation of Employer.
6. Covenant Not to Compete. Except as may be expressly consented
to by the Board of Directors, Employee covenants and agrees for the benefit of
Employer and Employer's successors and assigns that during the term of this
Agreement or for a period of five (5) years following the Effective Date,
whichever shall be longer (the "Restrictive Period"), Employee will not engage
or participate, directly or indirectly, as principal, agent, employee, employer,
consultant or in any other individual or representative capacity whatever, in
the conduct or management of, own (legally or beneficially) or have the right or
option to acquire, any direct or indirect interest in any business which, in the
reasonable judgment of the Board of Directors, engages, directly or indirectly,
in the business of manufacturing, distributing or marketing like product, or
otherwise competes with Employer's business or business prospects.
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Additionally, during the Restrictive Period Employee will not without
the written consent of Employer, directly or indirectly: (i) call on, solicit,
or use any of the customers or suppliers of Employer or its successors and
assigns either for Employee or for any other person, association or entity; or
(ii) solicit or hire employees of Employer or its successors and assigns either
for Employee or for any other person, association or entity. Employee
specifically acknowledges and agrees that the foregoing covenants are reasonable
in content and scope and are given for adequate consideration. Employer shall
have the option to reduce the scope and extent of the foregoing covenants, by
written notice to Employee, either before or after any adjudication of the
legality of said covenants, whereupon said covenants, as so reduced, shall be
binding and enforceable against Employer.
6. Non-Disclosure of Information. In further consideration of
employment and the continuation of employment by Employer, Employee will not,
directly or indirectly, during or after the term of employment, disclose to any
person not authorized by Employer to receive or use such information except, for
the sole benefit of Employer, any of Employer's confidential or proprietary
data, information, or techniques, or give to any person not authorized by
Employer to receive it, any information that is not generally known to anyone
other than Employer or that is designated by Employer as "Limited," "Private,"
"Confidential," or similarly designated.
7. Termination of Employment. Employee's employment hereunder
shall terminate upon the earliest to occur of any of the following events, on
the dates and at the times specified below:
a. the close of business on the last day of the term of
this Agreement and any extension thereof (the "Expiration Date");
b. the close of business on the date of Employee's death
("Death");
c. the close of business on the Termination Date (as
defined below) specified in the Notice of Termination (as defined below) which
Employer shall have delivered to Employee due to Employee's Disability.
"Disability" shall refer to any situation in which (i) Employee is absent from
work for 180 calendar days in any twelve-month period by reason of illness or
incapacity whether physical or otherwise; or (ii) the Board of Directors
reasonably determines that Employee is unable to perform his duties, services
and responsibilities by reason of illness or incapacity (whether physical or
otherwise) for a total of 180 calendar days in any twelve-month period during
the term of this Agreement. Employee agrees, in the event of any dispute under
this Subsection 8(c), and after receipt by Employee of such Notice of
Termination from Employer, to submit to a physical examination by a licensed
physician selected by Employer. Employee may seek a second opinion from a
licensed physician acceptable to Employer. If the results of the first
examination and the second examination are different, a licensed physician
selected by the physicians who have performed the first and second examinations
shall perform a third physical examination of Employee, the result of which
shall be determinative for purposes of this Subsection 8(c);
d. the close of business on the Termination Date
specified in the Notice of Termination which Employee shall have delivered to
Employer to terminate his employment ("Voluntary Termination:); and
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e. the close of business on the Termination Date
specified in the Notice of Termination which Employer shall have delivered to
Employee to terminate Employee's employment for Cause. "Cause" as used herein
shall include termination based on (i) Employee's material breach of this
Agreement; (ii) conviction of Employee for any crime constituting a felony in
the jurisdiction in which committed, any crime involving moral turpitude whether
or not a felony, or any other criminal act against Employer involving dishonesty
or willful misconduct intended to injure Employer (whether or not a felony);
(iii) substance abuse by Employee; (iv) the failure or refusal of Employee to
follow one or more lawful and proper directives of the Board of Directors
delivered to Employee in writing; (v) willful malfeasance or gross misconduct by
Employee which discredits or damages Employer; or (vi) unauthorized disclosure
of confidences of Employer.
9. Notice of Termination. Any purported termination of Employee's
employment hereunder by either Employer or Employee (other than by reason of
Death or on the Expiration Date) shall be communicated by written Notice of
Termination to the other party. As used herein, "Notice of Termination" shall
mean a notice which indicates the specific termination provision in this
Agreement relied upon and sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Employee's
employment herein.
10. Termination Date. As used herein, the term "Termination Date"
shall mean (i) the date of Employee's death; or (ii) the Expiration Date; or
(iii) the date specified in the Notice of Termination.
11. Accrued Salary, Benefits. Upon termination of this Agreement,
all unpaid but earned or accrued salary as of the Termination Date, shall be due
and payable to Employee, Employee's designee(s), or in the absence of such
designation, Employee's estate, within thirty (30) days after the Termination
Date.
12. Disability. If the Employee is unable to perform his services
by reason of illness or incapacity, the compensation payable to him under
Section 3 herein shall continue only in accordance with decision unilaterally
reached by the Board of Directors or pursuant to any written policy of the
Company.
13. Sale of Business. The provisions of this Agreement shall
survive the sale or transfer of Employer or Employer's business, and Employer's
successor-in-interest or the purchaser of Employer's business, whichever shall
be the case, shall be subject to and bound by the terms of this Agreement. This
provision shall apply in the event of any of the following events:
a. The sale, by the Employer, of substantially all of
its assets to a single purchaser or group of associated purchasers;
b. The sale, exchange or other disposition to a single
entity or group of entities under common control in one transaction or series of
related transactions of greater than fifty percent (50%) of the outstanding
shares of the Employer's common stock; or
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c. The merger or consolidation of the Employer in a
transaction in which the shareholders of the Employer receive less than fifty
percent (50%) of the outstanding voting shares of the new or continuing
corporation.
14. Employee Not Restricted by Other Agreement. The Employee
hereby expressly represents, warrants, and covenants to the Employer that he is
not bound, in any manner, by any agreement, whether written or oral, which would
restrict him from performing any duties under this Agreement.
15. Survival. The provisions of this Agreement including,
specifically, the Employee's representation, covenants, and agreements set forth
in Sections 6, 7, and 13 shall survive the termination of this Agreement.
16. Entire Agreement. This Agreement constitutes the entire
understanding between the parties and there are no covenants, conditions,
representation, or agreements, oral or written, or any nature whatsoever, other
than those herein contained.
17. Amendments. No amendment, alteration, or modification of this
Agreement shall be binding upon the parties hereto unless said amendment,
alteration, or modification is in writing and signed by all Parties hereto.
18. Waiver. The waiver of any term, condition, clause, or
provision of this Agreement shall in no way be deemed or considered a waiver of
any other term, condition, clause or provision of this Agreement.
19. Severability. If any term, condition, clause or provision of
the Agreement shall be deemed to be void or invalid then that term, condition,
clause or provision shall be stricken from this Agreement to the extent it is
held to be void or invalid, to be void or invalid and in all other respects this
Agreement shall be valid and in full force and operation.
20. Notices. Any notice, request, instruction, or other document
required by the terms of this Agreement, or deemed by any of the Parties hereto
to be desirable, to be given to any other Party hereto shall be in writing and
shall be given by facsimile, personal delivery, overnight delivery, or mailed by
registered or certified mail, postage prepaid, with return receipt requested, to
the following addresses:
To Employer: New Directions Manufacturing, Inc.
0000 X. Xxxxxxxx
Xxxxxxx, XX 00000
With copy to: Xxxxx Xxxxxx, Esq.
Xxxxxxx & Beam
Two Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
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To Employee: Xx. Xxxx X. Xxx
0000 Xxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
The persons and addresses set forth above may be changed from time to
time by a notice sent as aforesaid. If notice is given by facsimile, personal
delivery, or overnight delivery in accordance with the provisions of this
Section, said notice shall be conclusively deemed given at the time of such
delivery. If notice is given by mail in accordance with the provisions of this
Section, such notice shall be conclusively deemed given seven business days
after deposit thereof in the United States mail.
21. Additional Documents. The Parties hereto agree to execute any and
all additional papers and documents reasonably necessary or appropriate to
effectuate the terms of this Agreement.
22. Governing Law and Venue. This Agreement shall be governed by and
construed in accordance with the laws of the State of California which would
apply if both Parties were residents of California and this Agreement was made
and performed in California. In any legal action involving this Agreement or the
parties' relationship, the Parties agree that the exclusive venue for any
lawsuit shall be in the state or federal court located within the County of
Orange, California. The Parties agree to submit to the personal jurisdiction of
the state and federal courts located within Orange County, California.
23. Assignment. This Agreement shall not be assignable by any party to
this Agreement, except upon the written consent of all parties hereto. The
Employee shall not have the right to pledge, encumber, or dispose of the right
to receive any payments under this Agreement, which payments and right thereto
are expressly declared to be nonassignable and nontransferable and, in the event
of any attempted assignment or transfer, the Employer shall have no further
liability hereunder.
24. Counterparts; Facsimile Signatures. This Agreement may be executed
simultaneously in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. The Parties agree that facsimile signatures of this Agreement shall
be deemed a valid and binding execution of this Agreement.
25. Conflict Waive. The Parties hereto agree and acknowledge that
Xxxxxxx & Beam ("H&B" or "the Firm") represents Employer. This Agreement was
drafted by H&B. The Parties hereto further acknowledge that they have been
informed of the inherent conflict of interest associated with the drafting of
this Agreement by the H&B and waive any action they may have against H&B
regarding such conflict. All Parties to this Agreement have been given the
opportunity to consult with counsel of their choice regarding their rights under
this Agreement.
26. Indemnification. Each Party (the Indemnifying Party) agrees to
indemnify, defend, and hold harmless the other Party (the Indemnified party)
from and against any and all liability for injury to persons or damage to or
loss of property to the extent caused by the negligent act or omission of the
Indemnifying Party, its subcontractors, agents, or employees, including any and
all expense and costs, legal or otherwise, incurred by the Indemnified Party in
the investigation and defense of any claim,
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demand, or action arising out of the work performed under this Agreement;
provided, however, that the Indemnifying Party shall not be liable for injury to
persons or damage to or loss of property caused by the sole negligence of the
Indemnified Party, its subcontractors, agents, or employees.
The Indemnified Party shall notify promptly the Indemnifying Party of
the existence of any claim, demand, or other matter to which the Indemnifying
Party's indemnification obligations would apply, and shall give them a
reasonable opportunity to settle or defend the same at their own expense and
with counsel of their own selection, provided that the Indemnified Party shall
at all times also have the right to fully participate in the defense. If the
Indemnifying Party, within a reasonable time after this notice, fails to take
appropriate steps to settle or defend the claim, demand, or the matter, the
Indemnified Party shall, upon written notice, have the right, but not the
obligation, to undertake such settlement or defense and to compromise or settle
the claim, demand, or other matter on behalf, for the account, and at the risk,
of the Indemnifying Party.
The rights and obligations of the Parties under this section shall be
binding upon and inure to the benefit of any successors, assigns, and heirs of
the Parties.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
under seal the day and year first above written.
"Employer"
New Directors Corporation, a Nevada corporation
/s/ Xxxx Xxx /s/ Xxxx X. Xxxxxx
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BY: Xxxx Xxx BY: Xxxx X. Xxxxxx, Xx.
ITS: Chairman ITS: Secretary, Vice President, and Director
"Employee"
Xxxx X. Xxx
/s/ Xxxx X. Xxx
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Xxxx X. Xxx
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