EMPLOYMENT AGREEMENT
This Agreement is made this date, by and between TWIN FACES EAST
ENTERTAINMENT CORPORATION ("Employer") and Xxxxxxx X. Xxxxxx ("Employee").
WHEREAS, the Employer is engaged in the business of development of
intellectual and entertainment properties; and
WHEREAS, the Employer desires to retain the services of the Employee in the
capacity as its Executive Vice President, Corporate Secretary, and
Corporate Treasurer.
NOW THEREFORE IT IS AGREED AS FOLLOWS:
Section 1. Employment. The Employer agrees to employ the Employee and
the Employee agrees to accept the employment described in this Agreement.
Section 2. Duties. The Employee shall serve as Executive Vice
President of the Employer, with such duties as are customarily associated
with such position. The Employee shall be responsible for day-to-day
operations, strategic planning, and implementation of the Employer's
business. The Employee shall not be entitled to additional compensation by
reason of service as a director of the Employer or as a fiduciary of an
employee benefit plan of the Employer. The Employee's duties shall include
the following:
Operating as Executive Vice President of the Employer's Corporation as
provided in the By Laws of the Corporation.
Section 3. Extent of Services. The Employee shall devote the majority
of his working time, attention, and energies to the performance of his
duties and shall not be engaged in any competing business activity, whether
or not pursued for gain. The Employee shall at all times faithfully and to
the best of his ability perform his duties under this Agreement. The
duties shall be rendered either at the Employer's offices in southern
California or from his home, or at other place or places of business and at
such times as the needs of the Employer may dictate.
Section 4. Term. The term of this agreement shall begin on May 1,
1998 ("Effective Date") and shall continue for a five year period. The
parties presently anticipate that the employment relationship may continue
beyond this five year term. This Agreement shall not give the Employee and
enforceable right to employment beyond this term.
Section 5. Compensation.
5.1 Base Compensation. The Employee will receive a base salary of
$162,000 per year, payable in accordance with the Employer's standard
payroll procedures. The Employee is eligible for performance based
bonuses, but there is no assurance or expectation that the bonuses will be
paid. Bonuses will be paid, if at all, in the sole discretion of the Board
of Directors.
5.2 Benefits. The Employee shall receive immediate family medical and
dental insurance, life insurance equal to twice the annual base salary,
disability insurance and other fringe benefits provided to full time, non-
union employees of the Employer. An auto allowance will be provided, or
alternately, a leased vehicle for company use at a cost not to exceed $600
per month plus insurance, fuel, and operating maintenance.
5.3 Expenses. The Employer shall reimburse the Employee for reasonable
out-of-pocket expenses incurred by the Employee in fulfilling his duties.
The Employer shall, within its financial means and constraints, provide the
Employee with suitable office facilities, equipment, supplies, and staff.
Section 6. Termination.
6.1 For Cause. The Employer may terminate the Employee's employment at
any time "for cause" with immediate effect upon delivering written notice
to the Employee. For purposes of this Agreement, "for cause" shall
include: (a) embezzlement, theft, larceny, material fraud, or other acts of
dishonesty; (b) material violation by Employee of any of his obligations
under this Agreement; ( c) conviction of or entrance of a plea of guilty or
nolo contendere to a felony or other crime which has or may have a material
adverse effect on the Employee's ability to carry out his duties under this
Agreement or upon the reputation of the Employer; (d) conduct involving
moral turpitude; (e) gross insubordination or repeated insubordination
after written warning by the Chair of the Board; or (f) material and
continuing failure by the Employee to perform duties described in this
Agreement in a quality and professional manner for at least sixty (60) days
after written warning by the Board of Director or its Chair. Upon
termination "for cause", the Employer's sole and exclusive obligation will
be to pay the Employee his compensation earned through the date of
termination, and the Employee shall not be entitled to any compensation
after the date of termination.
6.2 Upon Death. In the event of the Employee's death during the term of
this Agreement, the Employer's sole and exclusive obligation will be to pay
the Employee's spouse, if living, or his estate, if his spouse is not then
living, the Employee's compensation earned through he date of death, plus 3
months base compensation severance.
6.3 Upon Disability. The Employer may terminate the Employee's employment
upon the Employee's total disability. The Employee shall be deemed to be
totally disabled if he is unable to perform his duties under the Agreement
by reason of mental or physical illness or accident, for a period of three
consecutive months. Upon termination by reason of the Employee's
disability, the Employer's sole and exclusive obligation will be to pay the
Employee his compensation earned through the date of termination plus three
months base compensation severance.
Section 7. Covenant Not to Compete.
7.1 Covenant. For a period of five years from the Effective Date of this
Agreement, and for such period after five years as the Employee continues
to be employed by the Employer, and for a one year period after the
Employee's employment with the Employer has been terminated by either
party, the Employee will not directly or indirectly:
A. enter into or attempt to enter into "Restricted Business" (as
defined below) in the entertainment business;
B. induce or attempt to persuade any former, current or future
employee, agent, manager, consultant, director, or other participant in the
Employer's business to terminate such employment or other relationship in
order to enter into any relationship with the Employee, any business
organization in which the Employee is a participant in any capacity
whatsoever, or any other business organization in competition with the
Employer's business; or
C. use contracts, proprietary information, trade secrets,
confidential information, customer lists, mailing lists, goodwill, or other
intangible property used or useful in connection with the Employer's
business.
7.2 Indirect Activity. The term "indirectly" as used in section 7.1
above, includes acting as a paid or unpaid director, officer, agent,
representative, employee of, or consultant to any enterprise, or acting as
a proprietor of an enterprise, or holding any direct or indirect
participation in any enterprise as an owner, partner, limited partner,
joint venturer, shareholder, or creditor.
7.3 Restricted Business. The term "Restricted Business" means the
entertainment industry with Xx. Xxxxxx'x current ownership of his company
Xxxx Xxxxxx Inc., d.b.a. Xxxx Xxxxxx & Associates and EMCI being
exceptions. Nevertheless, the Employee may own not more than five percent
of the outstanding equity securities of a corporation that is engaged in
the Restricted Business, with the above exception noted, if the equity
securities are listed for trading on a national stock exchange or is a
reporting company under the Securities Exchange Act of 1934.
Section 8. Severability. The covenants set forth in this Agreement
above shall be construed as a series of separate covenants, one for each
county in each of the states of the United States to which such restriction
applies. If, in any judicial proceeding, a court of competent jurisdiction
shall refuse to enforce any of the separate covenants deemed included in
this Agreement, or shall find that the term or geographical scope of one or
more of the separate covenants is unreasonably broad, the parties shall use
their best good faith efforts to attempt to agree on a valid provision
which shall be a reasonable substitute for the invalid provision. The
reasonableness of the substitute provision shall be considered in light of
the purpose of the covenants and the reasonable prospectable interests of
the Employer and the Employee. The substitute provision shall be
incorporated into this Agreement. If the parties are unable to agree on a
substitute provision, then the invalid or unreasonably broad provision
shall be deemed deleted or modified to the minimum extent necessary to
permit enforcement.
Section 9. Confidentiality. The Employee acknowledges that he will
develop and be exposed to information that is or will be confidential and
proprietary to the Employer. The information includes customer lists,
marketing plans, pricing data, product plans, software, and other
intangible information. Such information shall be deemed confidential to
the extend not generally known within the trade. The Employee agrees to
make use of such information only in performance of his duties under this
Agreement, to maintain such information in confidence and to disclose the
information only to persons with a need to know.
Section 10. Remedies. The Employee acknowledges that monetary damages
would be inadequate to compensate the Employer for any breach by the
Employee of the covenants set forth in this Agreement. The Employee agrees
that, in addition to other remedies which may be available, the Employer
shall be entitled to obtain injunctive relief against the threatened breach
of this Agreement or the continuation of any breach, or both, without the
necessity of proving actual damages.
Section 11. Waiver. The waiver by the Employer of the breach of any
provision of this Agreement by the Employee shall not operate or be
construed as a waiver of any subsequent breach by the Employee.
Section 12. Law Governing. This Agreement shall be governed by and
construed in accordance with the laws of the State of Nevada.
Section 13. Arbitration. If at anytime during the term of this
Agreement any dispute, difference, or disagreement shall arise upon or in
respect of this Agreement, and the meaning and construction thereof, every
such dispute, difference, and disagreement shall be referred to a single
arbiter agreed upon by both parties, or if no single arbiter can be agreed
upon, an arbiter or arbiters shall be selected in accordance with the rules
of the American Arbitration Association (AAA) and such dispute, difference,
or disagreement shall be settled by arbitration in accordance with the then
prevailing commercial rules of the AAA, and judgment upon the award
rendered by the arbiter may be entered in any court having jurisdiction
thereof.
Section 14. Attorney Fees. In the event an arbitration, suit or action
is brought by any party under this Agreement to enforce any of its terms,
or in any appeal therefrom, it is agreed that the prevailing party shall be
entitled to reasonable attorneys fees to be fixed by the arbitrator, trial
court, and/or appellate court.
This Agreement is made and entered this 1st day of May 1998.
Employer: Employee:
Twin Faces East Entertainment Corporation
by
/s/Xxxxxxx Xxxxxxxxx /s/Xxxxxxx X. Xxxxxx
------------------------- --------------------------
Xxxxxxx Xxxxxxxxx, President Xxxxxxx X. Xxxxxx
Date: May 1, 1998 Date: May 1, 1998
