AGREEMENT OF EMPLOYMENT
THIS AGREEMENT OF EMPLOYMENT ("Agreement") is made and entered into in
duplicate this ___ day of August, 1999, by and between XXXXXXXXXXX.XXX, INC., a
Nevada corporation ("Employer"), and XXXXX XXXXXXX ("Employee").
RECITALS
(a) Employer is a corporation duly organized and validly existing pursuant
to the laws of the State of Nevada.
(b) Employer is in the business of producing and marketing children and
family films and independent motion pictures both domestically and
internationally.
(c) Employer desires to employ Employee, and Employee desires to serve as
President of Employer and to do and perform any and all services, acts and
things specified hereinafter.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES, COVENANTS AND
UNDERTAKINGS HEREIN CONTAINED AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE
RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, WITH THE INTENT TO BE
OBLIGATED LEGALLY AND EQUITABLY, THE PARTIES AGREE WITH EACH OTHER AS FOLLOWS:
ARTICLE I.
TERM OF EMPLOYMENT
Section 1.1 Specified Term. Employer hereby employs Employee and Employee
hereby accepts employment with Employer for a period of five (5) years
commencing as of August __, 1999.
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Section 1.2 Automatic Renewal of Term. The term of this Agreement shall be
renewed automatically for succeeding periods of one (1) year each unless either
party gives to the other party notice, at least ninety (90) days prior to the
expiration of any such term, of the noticing party's intention not to renew the
term of this Agreement. For each additional successive one (1) year term
provided for in this Section 1.2, the compensation paid by Employer to Employee
shall be renegotiated for such term.
Section 1.3 "Employment Term" Defined. As specified herein, the phrases
"term of employment," "employment term," and "term of this Agreement" refer to,
and shall mean, be defined as and include, any and all renewals of the term of
this Agreement.
ARTICLE II.
DUTIES AND OBLIGATIONS OF EMPLOYEE
Section 2.1 General Duties. Employee shall serve as the President of
XXXXXXXXXXX.XXX, INC., a Nevada corporation. In Employee's capacity as the
President of Employer, Employee shall do and perform all services, acts, or
things necessary or appropriate to manage and conduct the business of
supervising, directing and controlling the activities and affairs and officers
of Employer. The duties to be performed by Employee shall be determined from
time to time by the Board of Directors of Employer ("Board").
Section 2.2 Matters Requiring Consent of Board. Employee, without specific
approval of the Board, shall not do or contract to do any of the following:
(1) Borrow on behalf of Employer during any one fiscal year an amount in
excess of One Thousand Dollars ($1,000.00);
(2) Permit any customer or client of Employer to become indebted to
Employer in an amount in excess of One Hundred Thousand Dollars
($100,000.00);
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(3) Purchase capital equipment for amounts in excess of the amounts
budgeted for expenditure by the Board;
(4) Terminate the services of any other officer of Employer or hire any
replacement of any officer of Employer who's services have been terminated;
or
(5) Obligate Employer to the expenditure of more than Ten Thousand Dollars
($10,000.00).
Section 2.3 Competitive Activities. During the term of this Agreement
Employee shall not, directly or indirectly, either as an employee, employer,
consultant, agent, principal, partner, stockholder, corporate officer, director,
or in any other individual or representative capacity, engage or participate in
any business that is in competition in any manner whatsoever with the business
of Employer.
Section 2.4 Uniqueness of Employee's Services. Employee hereby represents
and agrees that the services to be performed pursuant to the provisions of this
Agreement are of a special, unique, unusual, extraordinary, and intellectual
character that gives those services a peculiar value, the loss of which cannot
be reasonably or adequately compensated in damages in an action at law.
Employee, therefore, expressly agrees that Employer, in addition to any other
rights or remedies that Employer may possess, shall be entitled to injunctive
and other equitable relief to prevent or remedy a breach of this Agreement by
Employee.
Section 2.5 Indemnification for Negligence or Misconduct. Employee shall
save Employer harmless from and against and shall indemnify Employer for any
liability, loss, costs, expenses or damages howsoever caused by reason of any
injury (whether to body, property, or personal or business character or
reputation) sustained by any person or to any person or to property by reason of
any act, neglect, default or omission of Employee, and Employee shall pay any
and all amounts to be paid or discharged in case of an action for any such
damages or injuries. No provision of this section is intended to, nor shall any
provision of this section, relieve Employer from Employer's own act, omission or
negligence.
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ARTICLE III.
OBLIGATIONS OF EMPLOYER
Section 3.1 General Description. Employer shall provide Employee with the
compensation, incentives and benefits specified elsewhere in this Agreement.
Section 3.2 Office and Staff. Employer shall provide Employee with
equipment, supplies, facilities and services, suitable to Employee's position
and adequate for the performance of Employee's duties created by the provisions
of this Agreement.
Section 3.3 Reimbursement of Business Expenses. Employee is authorized to
incur reasonable business expenses for promoting the business of Employer,
including expenditures for entertainment, gifts, and travel. This reimbursement
shall include gasoline used by Employee for business travel. Employer will
reimburse Employee from time to time for all such business expenses provided
that Employee presents to Employer's Comptroller the account book and documents
when and as required by this section.
(a) Employee shall maintain an account book in which Employee shall record,
at or near the time each expenditure is made, the amount of the expenditure, the
time, place, and designation of the type of the entertainment and travel or
other expense, or the date and description of the gift, the business reason for
the expenditure and the nature of the business benefit derived or expected to be
derived as a result of the expenditure, and the names, occupations, addresses,
and other information, sufficient to establish the business relationship to
Employer, concerning each person who was entertained or given a gift.
(b) Employee shall also obtain and retain documentary evidence (such as
receipts or paid bills), which state sufficient information to establish the
amount, date, place, and the essential character of the expenditure, for each
expenditure of $25 or more (except for transportation charges if not readily
available) and for lodging while traveling away from home.
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(c) The foregoing account book and documentary evidence shall be delivered
to Employer whenever requested by Employer and thereafter shall be retained by
Employer.
Section 3.4 Repayment by Employee of Disallowed Business Expenses. In the
event that any expenses paid for Employee or any reimbursement of expenses paid
to Employee shall, on audit or other examination of Employer's income tax
returns, be determined not to be allowable deductions from Employer's gross
income, and in the further event that any such determination is acceded to by
the Employer or made final by the appropriate federal or state taxing authority
or a final judgment of a court of competent jurisdiction, and no appeal is taken
from the judgment or the applicable period for filing notice of appeal has
expired, Employee shall repay to Employer the amount of the disallowed expenses.
Section 3.5 Indemnification for Negligence or Misconduct. Employer shall
save Employee harmless from and against and shall indemnify Employee for any
liability, loss, costs, expenses or damages howsoever caused by reason of any
injury (whether to body, property, or personal or business character or
reputation) sustained by any person or to any person or to property by reason of
any act, neglect, default or omission of Employer, and Employer shall pay any
and all amounts to be paid or discharged in case of an action for any such
damages or injuries. No provision of this section is intended to, nor shall any
provision of this section, relieve Employee from that Employee's own act,
omission or negligence.
ARTICLE IV.
COMPENSATION OF EMPLOYEE
Section 4.1 Annual Salary. As compensation for the services to be rendered
by Employee pursuant to provisions of this Agreement, Employer shall pay
Employee an annual salary in the amount of One Hundred and Fifty Thousand U.S.
Dollars (U.S.$150,000), payable in equal bi-monthly installments of Six Thousand
Two Hundred and Fifty Dollars ($6,250). The compensation paid by Employer to
Employee will be reviewed and adjusted each year of this contract as negotiated
and agree to by both parties based on the performance of the company and the
employee, market conditions and the
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changing roles and responsibilities of the employee. Each successive one (1)
year term provided for in Section 1.2 of this Agreement shall also be
renegotiated for such term.
Section 4.2 Tax Withholding. Employer shall have the right to deduct or
withhold from the compensation due and payable to Employee pursuant to the
provisions of this Agreement any and all amounts required for federal income and
Social Security taxes and all state or local taxes now applicable or which may
be enacted and may become applicable in the future.
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ARTICLE V.
EMPLOYEE BENEFITS
Section 5.1 Annual Vacation.
(a) During the employment term, Employee shall be entitled to an annual
vacation leave of thirty (30) days each year without loss of compensation. In
the event that Employee is unable for any reason to take the total amount of
vacation time authorized herein during any year, he may accrue that time and add
it to vacation time for any following year.
(b) In lieu of vacation leave, Employee may elect to receive payment for
all or any part of the vacation leave to which Employee is entitled, in which
case the vacation leave shall be valued at the amount of salary earned by
Employee during an equivalent period of time during the fiscal year in which
such vacation leave accrued.
Section 5.2 Automobile. During the employment term, Employee shall be
entitled to the use of an automobile, to be leased by Employer. Employer shall
not be required to spend more than Six Hundred Dollars ($600.00) a month
pursuant to such lease. Except as otherwise specified in this Agreement, all
ordinary and routine expenses incurred in connection with the lease and business
use of such automobile shall be paid by Employer. The automobile shall be
selected by Employee, with the concurrence of Employer. Employee shall take
proper care of such automobile, and shall be responsible for all damage to same
resulting from any misuse or neglect. Employer shall also, at its own expense,
provide comprehensive insurance coverage for such automobile, specifying
Employee as a named insured.
Section 5.3 Paid Holidays. Employee shall be entitled to a holiday with
full pay on each New Year's Day, President's Day, Memorial Day, Independence
Day, Labor Day, Veteran's Day, Thanksgiving Day and Christmas Day during the
term of this Agreement.
Section 5.4 Illness. During the employment term, Employee shall be entitled
to ten (10) days per year as sick leave with full pay. Sick leave shall not be
accumulated.
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Section 5.5 Health Care Benefits. Employer shall include Employee in the
hospital, surgical, and medical benefit plan adopted and maintained by Employer.
Section 5.6 Other Benefits. Employee shall receive all other benefits of
employment available generally to other employees of the Employer.
ARTICLE VI.
PROPERTY RIGHTS OF THE PARTIES
Section 6.1 Confidentiality of Trade Secret Data.
(a) Employee agrees that all information communicated to him with respect
to the work conducted by or for Employer, whether or not that information was
directly or intentionally communicated, is confidential. Employee also agrees
that all information, conclusions, recommendations, reports, advice, or other
documents generated by Employee pursuant to this Agreement is confidential.
Employee further acknowledges and agrees that all confidential data described
herein is and constitutes trade secret information that belongs wholly to and is
the exclusive property of Employer.
(b) Employee promises and agrees that he shall not disclose any
confidential information to any other person unless specifically authorized in
writing by Employer to do so. If Employer gives Employee written authorization
to make any disclosure, Employee shall do so only within the limits and to the
extent of that authorization.
(c) Employee shall use his best efforts to prevent inadvertent disclosure
of any confidential information to any third party by using the same care and
discretion that he uses with similar data he designates as confidential.
(d) Employee acknowledges and agrees that all information concerning the
work conducted by Employer and any future and proposed products of Employer is
and constitutes an exceptionally valuable trade secret of Employer. That
information includes,
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among other matters, the facts that any particular work or project is planned,
under consideration, or in production, as well as any descriptions of any
existing, pending, or proposed work.
Section 6.2 Use and Disclosure of Confidential Data. Employee shall not use
any confidential information or circulate it to any other person, except when
specifically authorized in advance by Employer.
Section 6.3 Copies of Confidential Information. Employee agrees that copies
of confidential information may not be made without the express written
permission of Employer and that all such copies shall be returned to Employer
along with the originals.
Section 6.4 Ownership of Customer Records.
(a) All records of the accounts of customers and debtors, disks, files,
ledgers, tapes and other storage devices and any and all records and books
relating in any manner whatsoever to the customers of Employer, including, but
not limited to, credit reports or memorandum, reports of transactions made to
Employer, and demographic or economic data discovered by Employee during the
term of this Agreement, whether prepared by Employee or otherwise coming into
Employee's possession, shall be the exclusive property of Employer regardless of
who actually purchased the original book, record, tape, disk or other storage
device.
(b) All such books, records, disks, and storage devices shall be
immediately returned to Employer by Employee on any termination of the
employment term.
(c) If Employee produces any record, book, ledger, tape, disk, or similar
storage device to be used for record keeping, Employee shall immediately notify
Employer, who shall then immediately reimburse Employee.
Section 6.5 Soliciting Customers After Termination of Employment.
(a) Employee acknowledges and agrees that the names and addresses of
Employer's
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customers and debtors constitute trade secrets of Employer and that the sale or
unauthorized use or disclosure of any Employer's trade secrets obtained by
Employee during his employment with Employer constitutes unfair competition.
(b) For a period of two (2) years immediately following the termination of
his employment with Employer, Employee shall not directly or indirectly make
known to any person the names or addresses of any of the customers of Employer
or any other information pertaining to those customers, 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 on or with whom Employee became acquainted
during his employment with Employer, either for himself or for any other person.
Section 6.6 Unfair Competition. Employee acknowledges and agrees that the
sale or unauthorized use or disclosure of any of Employer's trade secrets
obtained by Employee during the course of his employment pursuant to the
provisions of this Agreement, including information concerning Employer's
current or any future and proposed work, services, or products, the facts that
any such work, services, or products are planned, under consideration, or in
production, as well as any descriptions thereof, constitute unfair competition.
Section 6.7 No Unfair Competition. Employee promises and agrees not to
engage in any unfair competition with Employer at any time, whether during or
following the completion of his employment with Employer.
ARTICLE VII.
TERMINATION OF EMPLOYMENT
Section 7.1 Termination for Cause.
(a) Employer reserves the right to terminate this Agreement if Employee
willfully breaches or habitually neglects the duties which he is required to
perform pursuant to the provisions of this Agreement; or commits such acts of
dishonesty, fraud, misrepresentation or other acts of moral turpitude as would
prevent the effective performance of his duties.
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(b) Employer, at its option, may terminate this Agreement for the reasons
stated in this section by giving written notice of termination to Employee
without prejudice to any other remedy to which Employer may be entitled either
at law, in equity, or pursuant to the provisions of this Agreement.
(c) The notice of termination required by this section shall specify the
ground for the termination and shall be supported by a statement of relevant
facts.
(d) Termination pursuant to this section shall be considered "for cause"
for the purposes of this agreement.
Section 7.2 Termination Without Cause.
(a) This Agreement shall be terminated upon the death of Employee.
(b) Employer reserves the right to terminate this Agreement not less than
three (3) months after Employee suffers any physical or mental disability that
would prevent the performance of his duties pursuant to the provisions this
Agreement. Such a termination shall be effected by giving thirty (30) days'
written notice of termination to Employee or to a duly appointed representative
of Employee.
(c) Employer may terminate this Agreement upon the destruction of
Employer's premises by fire or otherwise, or upon the discontinuance of
Employer's business due to any cause whatsoever.
(d) Termination under this section shall not be considered "for cause" for
the purposes of this Agreement.
Section 7.3 Effect of Merger, Transfer of Assets, or Dissolution.
(a) This Agreement shall not be terminated by any voluntary or involuntary
dissolution of Employer resulting from either a merger or consolidation in which
Employer is not the consolidated or surviving corporation, or a transfer of all
or substantially all of the assets of Employer.
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(b) In the event of any such merger or consolidation or transfer of assets,
Employer's rights, benefits, and obligations hereunder may be assigned to the
surviving or resulting corporation or the transferee of Employer's assets.
Section 7.4 Payment Upon Termination. Notwithstanding any provision of this
Agreement, if Employer terminates this Agreement without cause, it shall pay
Employee an amount equal to the net present value of the remaining obligation of
the current contract with a minimum of twelve (12) months salary at the then
current rate of compensation.
Section 7.5 Termination by Employee. Employee may terminate his obligations
pursuant to this Agreement by giving Employer at least sixty (60) days written
notice in advance.
Section 7.6 Duty of Employee Upon Termination. Upon the termination of
employment for any reason whatsoever, Employee shall deliver to Employer, at
Employee's place of business, any automobile or other equipment or supplies
furnished to Employee by Employer.
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ARTICLE VIII.
GENERAL PROVISIONS
Section 8.1 Recovery of Litigation Costs. In the event any party shall
institute any action or proceeding to enforce any provision of this Agreement to
seek relief from any violation of this Agreement, or to otherwise obtain any
judgment or order relating to or arising from the subject matter of this
Agreement, each prevailing party shall be entitled to receive from each losing
party such prevailing party's actual attorneys' fees and costs incurred to
prosecute or defend such action or proceeding, including, but not limited to,
actual attorneys' fees and costs incurred preparatory to such prosecution and
defense. Moreover, while a court of competent jurisdiction may assist in
determining whether or not the fees actually incurred are reasonable under the
circumstances then existing, that court is not to be governed by any judicially
or legislatively established fee schedule, and said fees and costs are to
include those as may be incurred on appeal of any issue and all of which fees
and costs shall be included as part of any judgment, by cost xxxx or otherwise,
and where applicable, any appellate decision rendered in or arising out of such
action or proceeding. For purposes of this Agreement, in any action or
proceeding instituted by a party, the prevailing party shall be that party in
any such action or proceeding (i) in whose favor a judgment is entered, or (ii)
prior to trial, hearing or judgment any other party shall pay all or any portion
of amounts claimed by the party seeking payment, or such other party shall
eliminate the condition, cease the act, or otherwise cure the act of commission
or omission claimed by the party initiating such action or proceeding.
Section 8.2 Governmental Rules and Regulations. The provisions of this
Agreement are subject to any and all present and future orders, rules and
regulations of any duly constituted authority having jurisdiction of the
relationship and transactions contemplated by the provisions of this Agreement.
Section 8.3 Notices. All notices, requests, demands or other communications
pursuant to this Agreement shall be in writing or by telex or facsimile
transmission and shall be deemed to have been duly given (i) on the date of
service if delivered in person or by telex or facsimile transmission (with the
telex or facsimile confirmation of
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transmission receipt acting as confirmation of service when sent and provide
telexed or telecopied notices are also mailed by first class, certified or
registered mail, postage prepaid); or (ii) seventy-two (72) hours after mailing
by first class, registered or certified mail, postage prepaid, and properly
addressed as follows:
If to Employee: XXXXX XXXXXXX
00 Xxxxxx Xxxxxx, Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
If to Employer: XXXXXXXXXXX.XXX, INC.
1104 - 00000 Xxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Phone: (310) 779 - 8232
Telecopier: (310) 471 - 8203
With a copy to: XXXXX & XXXXXXXXX LLP
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
949.660.9700
Telecopier: 949.660.9010
or at such other address as the party affected may designate in a written notice
to such other party in compliance with this section.
Section 8.4 Entire Agreement. This Agreement is the final written
expression and the complete and exclusive statement of all the agreements,
conditions, promises, representations, warranties and covenants between the
parties with respect to the subject matter of this Agreement, and this Agreement
supersedes all prior or contemporaneous agreements, negotiations,
representations, warranties, covenants, understandings and discussions by and
between and among the parties, their respective representatives, and any other
person with respect to the subject matter specified in this Agreement. This
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Agreement may be amended only by an instrument in writing which expressly refers
to this Agreement and specifically states that such instrument is intended to
amend this Agreement and is signed by each of the parties. Each of the parties
represents, warrants and covenants that in executing this Agreement that such
party has (i) relied solely on the terms, conditions and provisions specified in
this Agreement and (ii) placed no reliance whatsoever on any statement,
representation, warranty, covenant or promise of any other party, or any other
person, not specified expressly in this Agreement, or upon the failure of any
party or any other person to make any statement, representation, warranty,
covenant or disclosure of any nature whatsoever. The parties have included this
section to preclude (i) any claim that any party was in any manner whatsoever
induced fraudulently to enter into, execute and deliver this Agreement, and (ii)
the introduction of parol evidence to vary, interpret, supplement or contradict
the terms, conditions and provisions of this Agreement.
Section 8.5 Severability. In the event any part of this Agreement, for any
reason, is declared to be invalid, such decision shall not affect the validity
of any remaining portion of this Agreement, which remaining portion shall remain
in complete force and effect as if this Agreement had been executed with the
invalid portion of this Agreement eliminated, and it is hereby declared the
intention of the parties that the parties would have executed the remaining
portion of this Agreement without including any such part, parts or portion
which, for any reason, hereafter may be declared invalid.
Section 8.6 Captions and Interpretation. Captions of the sections of this
Agreement are for convenience and reference only, and the words contained in
those captions shall in no way be held to explain, modify, amplify or aid in the
interpretation, construction or meaning of the provisions of this Agreement. The
language in all parts to this Agreement, in all cases, shall be construed in
accordance with the fair meaning of that language was prepared by all parties
and not strictly for or against any party.
Section 8.7 Further Assurances. Each party shall take any and all action
necessary, appropriate or advisable to execute and discharge such party's
responsibilities and obligations created by the provisions of this Agreement and
to further effectuate and carry out the intents and purposes of this Agreement
and the relationship contemplated by the provisions of this Agreement.
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Section 8.8 Number and Gender. Whenever the singular number is used in this
Agreement, and when required by the context, the same shall include the plural,
and vice versa; the masculine gender shall include the feminine and the neuter
genders, and vice versa; and the word "person" shall include corporation, firm,
trust, joint venture, trust, estate, municipality, governmental agency, sole
proprietorship, political subdivision, fraternal order, club, league, society,
organization, joint stock company, association partnership or other form of
entity.
Section 8.9 Execution in Counterparts. This Agreement shall be prepared in
multiple copies and forwarded to each of the parties for execution. All of the
signatures of the parties may be affixed to one copy or to separate copies of
this Agreement and when all such copies are received, and signed by all the
parties, those copies shall constitute one agreement which is not otherwise
separable or divisible. Counsel for Employer shall keep all of such signed
copies and shall conform one copy to show all of those signatures and the dates
thereof and shall mail a copy of such conformed copy to each of the parties
within thirty (30) days after the receipt by such counsel of the last signed
copy, and shall cause one such conformed copy to be filed in the principal
office of such counsel.
Section 8.10 Successors and Assigns. This Agreement shall inure to the
benefit of and obligate the undersigned parties and their respective successors
and assigns. Whenever, in this Agreement, a reference to any party is made, such
reference shall be deemed to include a reference to the successors and assigns
of such party. The provisions of this section notwithstanding, no provision of
this section shall be construed or interpreted as a consent to the assignment or
delegation by any party of such party's respective rights and obligation created
by the provisions of this Agreement.
Section 8.11 Reservation of Rights. The failure of any party at any time
hereafter to require strict performance by the other party of any of the
warranties, representations, covenants, terms, conditions and provisions
specified in this Agreement shall not waive, affect or diminish any right of
such party failing to require strict performance to demand strict compliance and
performance therewith and with respect to any other provisions,
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warranties, terms and conditions specified in this Agreement, and any waiver of
any default shall not waive or affect any other default, whether prior or
subsequent thereto, and whether the same or of a different type. None of the
representations, warranties, covenants, conditions, provisions and terms
specified in this Agreement shall be deemed to have been waived by any act or
knowledge of either party or such party's agents, officers or employees, and any
such waiver shall be made only by an instrument in writing, signed by the
waiving party and directed to the non-waiving party specifying such waiver. Each
party reserves such party's rights to insist upon strict compliance with the
provisions of this Agreement at all times.
Section 8.12 No Breach of Existing Agreements. Each party hereby
represents, warrants and covenants, upon the execution of this Agreement, such
party is not a party to any oral or written agreement which may be breached by
such party's execution of this Agreement.
Section 8.13 Concurrent Remedies. No right or remedy specified in this
Agreement conferred on or reserved to the parties is exclusive of any other
right or remedy specified in this Agreement or by law or equity provided or
permitted; but each such right and remedy shall be cumulative of, and in
addition to, every other right and remedy specified in this Agreement or now or
hereafter existing at law or in equity or by statute or otherwise, and may be
enforced concurrently therewith or from time to time. The termination of this
Agreement for any reason whatsoever shall not prejudice any right or remedy
which either party may have, either at law, in equity or pursuant to the
provisions of this Agreement.
Section 8.14 Time. Time is of the essence of this Agreement and each and
all of the provisions of this Agreement.
Section 8.15 Choice of Law and Consent to Jurisdiction. This Agreement
shall be deemed to have been entered into in the County of Los Angeles, State of
California, and all questions concerning the validity, interpretation or
performance of any of the terms, conditions and provisions of this Agreement or
of any of the rights or obligations of the parties, shall be governed by, and
resolved in accordance with, the laws of the State of
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California. Any and all actions or proceedings, at law or in equity, to enforce
or interpret the provisions of this Agreement may be litigated in courts having
situs within the County of Los Angeles, State of California, and each party
hereby consents to the jurisdiction of any local, state or federal court located
within the County of Los Angeles, State of California and consents any service
of process in such action or proceeding may be made by personal service upon
such party wherever such party may be then located, or by certified or
registered mail directed to such party at such party's last known address.
Section 8.16 Assignability. Neither party shall sell, assign, transfer,
convey or encumber this Agreement or any right or interest in this Agreement or
pursuant to this Agreement, or suffer or permit any such sale, assignment,
transfer or encumbrance to occur by operation of law without the prior written
consent of the other party. In the event of any sale, assignment, transfer or
encumbrance consented to by such other party, the transferee or such
transferee's legal representative shall agree with such other party in writing
to assume personally, perform and be obligated by the covenants, obligations,
terms, conditions and provisions specified in this Agreement.
Section 8.17 Force Majeure.
(a) If any party is rendered unable, completely or partially, by the
occurrence of an event of "force majeure" (hereinafter defined) to perform such
party's obligations created by the provisions of this Agreement, other than the
obligation to make payments of money, such party shall give to the other party
prompt written notice of the event of "force majeure" with reasonably complete
particulars concerning such event; thereupon, the obligations of the party
giving such notice, so far as those obligations are affected by the event of
"force majeure," shall be suspended during, but no longer than, the continuance
of the event of "force majeure." The party affected by such event of "force
majeure" shall use all reasonable diligence to resolve, eliminate and terminate
the event of "force majeure" as quickly as practicable.
(b) The requirement an event of "force majeure" shall be remedied with all
reasonable dispatch as hereinabove specified, shall not require the settlement
of strikes, lockouts or other labor difficulties by the party involved, contrary
to such party's wishes,
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and the resolution of any and all such difficulties shall be handled entirely
within the discretion of the party concerned.
(c) The term "force majeure" as used herein shall be defined as and mean
any act of God, strike, lockout or other industrial disturbance, act of the
public enemy, war, blockage, public riot, lightening, fire, storm, flood,
explosion, governmental action, governmental delay, restraint or inaction,
unavailability or equipment, and any other cause or event, whether of the kind
enumerated specifically herein, or otherwise, which is not reasonably within the
control of the party claiming such suspension.
Section 8.18 Consent to Agreement. By executing this Agreement, each party,
for itself represents such party has read or caused to be read this Agreement in
all particulars, and consents to the rights, conditions, duties and
responsibilities imposed upon such party as specified in this Agreement. Each
party represents, warrants and covenants that such party executes and delivers
this Agreement of its own free will and with no threat, undue influence, menace,
coercion or duress, whether economic or physical. Moreover, each party
represents, warrants, and covenants that such party executes this Agreement
acting on such party's own independent judgment.
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IN WITNESS WHEREOF the parties have executed this Agreement of Employment
in duplicate and in multiple counterparts, each of which shall have the force
and effect of an original, on the date specified in the preamble of this
Agreement.
"EMPLOYER" "EMPLOYEE"
XXXXXXXXXXX.XXX, INC.,
a Nevada corporation
By: /s/ [ILLEGIBLE] /s/ XXXXX XXXXXXX
------------------------ ------------------------
XXXXX XXXXXXX
Its: Director
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