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EXHIBIT 10.4.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of September 23, 1998, by and between Paisano Publications, Inc., a California
corporation (the "Company") and Xxxxxx Xxxxx (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company is engaged in the publishing of special interest
magazines directed to motorcycle and tattoo enthusiasts;
WHEREAS, the Executive, by education and experience, possesses
extraordinary qualifications to serve as an executive officer of the Company;
and
WHEREAS, the Company desires to employ the Executive and the Executive
desires to accept such employment with the Company, in each case upon the terms
and subject to the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein set forth, it is agreed as follows:
1. EMPLOYMENT. The Company agrees to employ the Executive, and the Executive
agrees to be employed by the Company, subject to the terms and conditions set
forth herein.
2. TERM. Subject to the provisions hereof, the term of the Executive's
employment by the Company under this Agreement shall be for a period of one (1)
year commencing on the date hereof; provided that such term of employment shall
continue thereafter unless and until terminated by either the Company or the
Executive upon no less than sixty (60) days' prior written notice to the other
of the desire to terminate such employment. The term of the Executive's
employment hereunder, including any continuation of the original term, is
hereinafter referred to as the "Employment Period."
3. POSITION AND DUTIES. During the Employment Period, the Executive shall serve
as Chief Financial Officer of the Company, with such assignments, powers and
duties as are assigned or delegated to him by the Board of Directors or
President of the Company. Such assignments, powers and duties may, from time to
time, be modified by the Company, as the Company's needs may require. The
Executive shall also, at the request of the Company, perform similar services
for any Affiliate (as hereinafter defined) of the Company without additional
compensation. The Executive agrees to devote all of his business time, skill,
attention and best efforts to the business of the Company and its Affiliates in
the advancement of
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the best interests of the Company and its Affiliates. As used in this Agreement,
the term "Affiliate" of the Company means any person, corporation or other
entity that, directly or indirectly through one or more intermediaries,
controls, is controlled by or is under common control with the Company.
Notwithstanding anything to the contrary contained herein, the Executive shall
be subject to and be bound by all employment-related agreements and policies
adopted by the Company and applicable to the Company's employees generally.
4. COMPENSATION. For all services rendered by the Executive to the Company
during the Employment Period, the Company shall pay to the Executive a salary at
the annual rate of One Hundred Sixty Three Thousand ($163,000). The compensation
is to be payable, subject to such withholdings as are required by law, in
installments in accordance with the Company's customary payroll practices.
5. EXPENSES. The Company shall reimburse the Executive for such travel,
entertainment and other business expenses reasonably incurred by him in
connection with the business of the Company and the performance of his duties
hereunder upon presentation by the Executive to the Company of substantiating
evidence thereof in such form as the Company reasonably may require from time to
time.
6. OFFICE FACILITIES. During the Employment Period, the Company will furnish the
Executive, without charge, with suitable office facilities for the purpose of
performing his duties hereunder, which facilities shall include secretarial,
telephone, clerical and support personnel and services.
7. TERMINATION.
A. TERMINATION DUE TO DEATH OR DISABILITY. If the Executive dies or
becomes disabled during the Employment Period, the Executive's salary and other
rights under this Agreement or as an employee of the Company shall terminate at
the end of the month during which death or disability occurs. For purposes of
this Agreement, the Executive shall be deemed to be "disabled" if, at any time
during the Employment Period, the Executive shall have been unable to perform
the duties of his employment hereunder for ninety (90) days in a period of two
hundred seventy (270) days.
B. TERMINATION FOR CAUSE. If the Executive fails to perform his duties
hereunder or to comply with any of the material provisions hereof or commits any
act of misconduct, malfeasance, gross negligence or disloyalty or disregards or
seriously neglects his duties as an executive and employee of the Company, the
Employment Period and the Executive's salary and other rights under this
Agreement as an employee of the Company shall terminate effective upon notice
from the Company to the Executive, but such termination shall not affect the
liability of the Executive by reason of his misconduct, malfeasance, gross
negligence or disloyalty.
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C. TERMINATION FOR REASONS OTHER THAN CAUSE, DEATH OR DISABILITY. If the
Executive's employment shall be terminated by the Company for reasons other than
as stated in Sections 7(A) or (B), the Company shall continue to pay the
Executive as damages the salary specified in Section 4 for the remainder of the
Employment Period, subject to the Executive's obligation under law to mitigate
such damages or to offset such damages by amounts earned by the Executive
subsequent to the termination of this Agreement.
8. COVENANT NOT TO DISCLOSE. The Executive covenants and agrees that he will
not, at any time during or after the termination of his employment by the
Company, communicate or disclose to any person, corporation or other entity, or
use for his own account, or advise, discuss with, or in any way assist any other
person, corporation or other entity in obtaining or learning about, without the
prior written consent of the Company, confidential information concerning the
business and affairs of the Company or any of its Affiliates. The Executive
further covenants and agrees that he shall retain all such knowledge and
information concerning the foregoing in trust for the sole benefit of the
Company and its Affiliates and their respective successors and assigns.
9. COVENANT NOT TO COMPETE. The Executive covenants and agrees that, during the
Employment Period and for a period of one (1) year after the termination of the
Employment Period, the Executive will not, directly or indirectly, own, render
services or advice to, or be engaged in a business which is similar to or in
competition with the business of the Company or any of its Affiliates, except
upon the written consent of the Company. The foregoing prohibition shall
specifically extend to (a) soliciting any employees of the Company for any
reason and (b) soliciting any customers, suppliers, sponsors or promoters of the
Company with respect to any activities similar to those engaged in by the
Company.
10. ESSENTIAL NATURE OF COVENANTS. The covenants contained in Sections 8 and 9
of this Agreement shall be construed as independent of any other provision of
this Agreement and the existence of any claim or cause of action of the
Executive against the Company or any of its Affiliates, whether predicated on
this Agreement or otherwise, shall not constitute a defense to the enforcement
by the Company of said covenants. The Executive understands that the covenants
contained in Sections 8 and 9 are essential elements of the transactions
contemplated by this agreement and, but for the agreement of the Executive to
Sections 8 and 9, the Company would not have agreed to enter into such
transactions. The Executive has been advised to consult with his counsel in
order to be informed in all respects concerning the reasonableness and propriety
of Sections 8 and 9 with specific regard to the nature of the business conducted
by the Company, and the Executive acknowledges that Sections 8 and 9 are
reasonable in all respects.
11. REMEDIES. In the event of a breach or threatened breach by the Executive of
Section 8 or 9, the Company shall be entitled to make application for a
temporary restraining order and an injunction restraining the Executive from the
commission of such breach. Nothing herein contained shall be construed as
prohibiting the Company from pursuing any other remedies available to it for
such breach or threatened breach, including the recovery of money damages.
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12. WAIVER OR BREACH. The waiver by the Company 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.
13. BINDING EFFECT. This Agreement shall inure to the benefit of and shall be
binding upon the parties hereto and their respective permitted successors,
assigns, heirs and legal representatives. The Company may assign this Agreement
to an Affiliate without the consent of the Executive. The Executive may not
assign this Agreement.
14. SEVERABILITY. The invalidity of all or any part of any section of this
Agreement shall not render invalid the remainder of this Agreement or the
remainder of such section. If any provision of this Agreement is so broad as to
be unenforceable, such provision shall be interpreted to be only so broad as is
enforceable.
15. COUNTERPARTS. This Agreement may be executed in any number of counterparts,
each of which shall, when executed, be deemed to be an original, but all of
which together shall constitute one and the same instrument.
16. GOVERNING LAW. This Agreement shall be construed and enforced in accordance
with the laws of the state of California.
17. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the parties hereto and supersedes all prior agreements, understandings and
arrangements, oral or written, between the parties hereto with respect to the
subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
PAISANO PUBLICATIONS, INC.
By: /s/ Xxxxxxx Xxxxxxx /s/ Xxxxxx Xxxxx
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Name: Xxxxxxx Xxxxxxx XXXXXX XXXXX
Title: Chief Executive Officer
