EXHIBIT 10.19
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into as of March 22,
1999, by and between iMALL, Inc., a Nevada corporation (the "Company") and
Xxxxxx Xxxxxx, an individual ("Employee"), with reference to the following:
A. The Company desires to employ Employee on the terms and conditions set
forth in this Agreement.
B. Employee desires to be so employed.
NOW, THEREFORE, based on the foregoing premises and in consideration
of the covenants set forth in this Agreement, the parties hereto hereby agree as
follows:
1. Term of Employment. The Company hereby employs Employee and
Employee accepts such employment commencing on March 22, 1998 and terminating on
that date which is two years thereafter, unless sooner terminated in accordance
with the terms of this Agreement.
2. Services to be Rendered.
2.1 Duties. Employee shall serve as Senior Vice President of the
Company and shall have the responsibilities, duties and powers customarily
associated with such position. Employee shall perform his duties pertaining to
the business of the Company (the "Company Business") subject to the direction of
the Chief Operating Officer of the Company and to such limits upon Employee's
authority as the Chief Executive Officer may from time to time impose.
Employee's principal place of work hereunder shall be located in Provo, Utah or
such other location within the State of Utah as may be designated by the Chief
Executive Officer from time to time. However, Employee shall also render
services at such other place or places within or without the United States as
the Chief Executive Officer may direct from time to time. Employee shall be
subject to the policies and procedures generally applicable to executive
employees of the Company to the extent the same are not inconsistent with any
term of this Agreement.
2.2 Exclusive Services. Employee shall at all times faithfully,
industriously and to the best of his ability, experience and talent perform to
the satisfaction of the Chief Executive Officer all of the duties
that may be assigned to Employee hereunder and shall devote all of his
productive time and efforts to the performance of such duties; provided,
however, that Employee may devote time to personal and family investments to the
extent that the time so spent does not conflict with the Company Business. The
existence of such a conflict shall be determined in good faith by the Chief
Executive Officer.
3. Compensation and Benefits. The Company shall pay the following
compensation and benefits to Employee during the term hereof, and Employee shall
accept the same as payment in full for all services rendered by Employee to or
for the benefit of the Company:
3.1 Salary. A salary ("Salary") of $120,000 per annum. The Salary
shall accrue in equal monthly installments in arrears and shall be payable in
accordance with the payroll practices of the Company in effect from time to
time.
3.2 Fringe Benefits. Employee shall be entitled to participate in
benefits under the Company's benefit plans and arrangements, including, without
limitation, any employee benefit plan or arrangement made available in the
future by the Company to its executives, subject to and on a basis consistent
with the terms, conditions and overall administration of such plans and
arrangements. The
Company shall have the right to amend or delete any such benefit plan or
arrangement made available by the Company to its executives and not otherwise
specifically provided for herein.
3.3 Expenses. The Company shall reimburse Employee for reasonable
out-of-pocket expenses incurred in connection with the Company Business and the
performance of his duties hereunder, subject to (i) such policies as the Chief
Executive Officer may from time to time establish, (ii) Employee furnishing the
Company with evidence in the form of receipts satisfactory to the Company
substantiating the claimed expenditures, and (iii) Employee receiving advance
approval from the Chief Executive Officer in case of expenses (or a series of
related expenses) in excess of $1,000.
3.4 Vacation. Employee shall be entitled to the number of paid
vacation days in each calendar year determined by the Company from time to time
for its executives. Employee shall also be entitled to all paid holidays given
to the Company's executives.
3.5 Bonus. In addition to the Salary to which Employee is entitled
pursuant to Section 3.1, the Company may grant to Employee an annual bonus or
bonuses, at the sole and exclusive discretion of the Chief Executive Officer and
the Compensation Committee of the Company and at such times and in such manner
as the Chief Executive Officer and the Compensation Committee may determine.
3.6 Withholding and other Deductions. All compensation payable to
Employee hereunder shall be subject to such deductions as the Company is from
time to time required to make pursuant to law, governmental regulation or order.
4. Representations and Warranties of Employee. Employee represents
and warrants to the Company that (a) Employee is under no contractual or other
restriction or obligation which is inconsistent with the execution of this
Agreement, the performance of his duties hereunder, or the other rights of
the Company hereunder and (b) Employee is under no physical or mental disability
that would hinder the performance of his duties under this Agreement.
5. Certain Covenants.
5.1 Noncompetition. The parties hereto acknowledge that if Employee
were to compete with the Company, Employee would necessarily use Confidential
Information (as defined below) in doing so. Accordingly, during the term of this
Agreement (including, if Employee is terminated for good cause or
voluntarily terminates his employment hereunder, for the remainder of the term
of this Agreement after such termination) (the "Restricted Period"), Employee
shall not have any ownership interest (of record or beneficial) in, or have any
interest as an employee, salesman, consultant, officer or director in, or
otherwise aid or assist in any manner, any firm, corporation, partnership,
proprietorship or other business that engages in any county, city or part
thereof in the United States and/or any foreign country in a business which is
similar to that in which the Company is engaged in such county, city or part
thereof, so long as the Company, or any successor in interest of the Company the
business and goodwill of the Company, remains engaged in such business in such
county, city or part thereof or continues to solicit customers or potential
customers therein; provided, however, that Employee may own, directly or
indirectly, solely as an investment, securities of any entity which are traded
on any national securities exchange if Employee (a) is not a controlling person
of, or a member of a group which controls, such entity or (b) does not, directly
or indirectly, own one percent (1%) or more of any class of securities of any
such entity.
5.2 Trade Secrets. Employee acknowledges that the nature of
Employee's engagement by the Company is such that Employee will have access to
Confidential Information which has great value to the Company and that except
for Employee's engagement by the Company, Employee would not otherwise have
access to the Confidential Information. During the term of this Agreement and at
all times thereafter, Employee shall keep all of the Confidential Information in
confidence and shall not disclose any of the same to any other person, except
the Company's personnel entitled thereto and other persons designated in writing
by the Company. Employee shall not cause, suffer or permit the Confidential
Information to be
used for the gain or benefit of any party outside of the Company or for
Employee's personal gain or benefit outside the scope of Employee's engagement
by the Company.
5.3 Solicitation of Business. Employee shall not during the
Restricted Period solicit or assist any other person to solicit any business
(other than for the Company) from any present or past customer of the Company;
or request or advise any present or future customer of the Company to withdraw,
curtail or cancel its business dealings with the Company; or commit any other
act or assist others to commit any other act which might injure the business of
the Company.
5.4 Solicitation of Employees. Employee shall not during the
Restricted Period, directly or indirectly, hire, solicit or encourage to leave
the employment of the Company or any of its affiliates, any employee of the
Company or any of its affiliates or hire any such employee who has left the
employment of the Company or any of its affiliates within one year of the
termination of such employee's employment with the Company or any of its
affiliates.
5.5 Solicitation of Consultants. Employee shall not during the
Restricted Period, directly or indirectly, hire, solicit or encourage to cease
work with the Company or any of its affiliates any consultant then under
contract with the Company or any of its affiliates within one year of the
termination of such consultant's engagement by the Company or any of its
affiliates.
5.6 Rights and Remedies Upon Breach. If Employee breaches or
threatens to commit a breach of any of the provisions of this Section 6 (the
"Restrictive Covenants"), the Company shall have the following rights and
remedies, each of which rights and remedies shall be independent of the other
and severally enforceable, and all of which rights and remedies shall be in
addition to, and not in lieu of, any other rights and remedies available to the
Company under law or in equity:
(a) Specific Performance. The right and remedy to have the
Restrictive Covenants specifically enforced by any court having equity
jurisdiction, all without the need to post a bond or any other security or to
prove any amount of actual damage or that money damages would not provide an
adequate remedy, it being acknowledged and agreed that any such breach or
threatened breach will cause irreparable injury to the Company and that money
damages will not provide adequate remedy to the Company; and
(b) Accounting and Indemnification. The right and remedy to
require Employee (i) to account for and pay over to the Company all
compensation, profits, monies, accruals, increments or other benefits derived or
received by Employee or any associated party deriving such benefits as a result
of any such breach of the Restrictive Covenants; and (ii) to indemnify the
Company against any other losses, damages (including special and consequential
damages), costs and expenses, including actual attorneys' fees and court costs,
which may be incurred by them and which result from or arise out of any such
breach or threatened breach of the Restrictive Covenants.
5.7 Severability of Covenants/Blue Penciling. If any court
determines that any of the Restrictive Covenants, or any part thereof, is
invalid or unenforceable, the remainder of the Restrictive Covenants shall not
thereby be affected and shall be given full effect, without regard to the
invalid portions. If any court determines that any of the Restrictive Covenants,
or any part thereof, are unenforceable because of the duration of such
provision or the area covered thereby, such court shall have the power to reduce
the duration or area of such provision and, in its reduced form, such provision
shall then be enforceable and shall be enforced. Employee hereby waives any and
all right to attack the validity of the Restrictive Covenants on the grounds of
the breadth of their geographic scope or the length of their term.
5.8 Enforceability in Jurisdictions. The Company and Employee
intend to and do hereby confer jurisdiction to enforce the Restrictive Covenants
upon the courts of any jurisdiction within the
geographical scope of such covenants. If the courts of any one or more of such
jurisdictions hold the Restrictive Covenants wholly unenforceable by reason of
the breadth of such scope or otherwise, it is the intention of the Company and
Employee that such determination not bar or in any way affect the right of the
Company to the relief provided above in the courts of any other jurisdiction
within the geographical scope of such covenants, as to breaches of such
covenants in such other respective jurisdictions, such covenants as they relate
to each jurisdiction being, for this purpose, severable into diverse and
independent covenants.
5.9 Definitions.
(a) In Sections 5.1 - 5.9 above, all references to the Company mean
not only the Company, but also any company, partnership or entity which,
directly or indirectly, controls, is controlled by or is under common control
with the Company.
(b) The term "Confidential Information", as used in this Agreement,
means all information or material not generally known by non-Company personnel
which (i) gives the Company some competitive business advantage or the
opportunity of obtaining such advantage or the disclosure of which could be
detrimental to the interests of the Company; (ii) which is owned by the Company
or in which the Company has an interest and (iii) which is either (A) marked
"Confidential Information," "Proprietary Information" or other similar marking,
(B) known by Employee to be considered confidential and proprietary by the
Company or (C) from all the relevant circumstances should reasonably be assumed
by Employee to be confidential and proprietary to the Company. Confidential
Information includes, but is not limited to, the following types of information
and other information of a similar nature (whether or not reduced to writing):
trade secrets, inventions, drawings, file data, documentation, diagrams,
specifications, know how, processes, formulas, models, flow charts, software in
various stages of development, source codes, object codes, categories of
information unique to the business, research and development procedures,
research or development and test results, marketing techniques and materials,
marketing and development plans, price lists, pricing policies, business plans,
information relating to customers and/or suppliers' identities, characteristics
and agreements, financial information and projections, and employee files.
Confidential Information also includes any information described above which the
Company obtains from another party and which the Company treats as proprietary
or designates as Confidential Information, whether or not owned or developed by
the Company. NOTWITHSTANDING THE ABOVE, HOWEVER, NO INFORMATION CONSTITUTES
CONFIDENTIAL INFORMATION IF IT IS GENERIC INFORMATION OR GENERAL KNOWLEDGE
WHICH COVENANTOR WOULD HAVE LEARNED IN THE COURSE OF SIMILAR EMPLOYMENT
ELSEWHERE IN THE TRADE OR IF IT IS OTHERWISE PUBLICLY KNOWN AND IN THE PUBLIC
DOMAIN.
6. Proprietary Rights.
6.1 Disclosure of Employee's Knowledge. Employee shall make
available to the Company at no cost to the Company all knowledge possessed by
him relating to any methods, developments, inventions and/or improvements,
whether patented, patentable or unpatentable, which concern in any way the
Company Business, acquired by Employee during the term of employment, provided
that nothing herein shall be construed as requiring any disclosure where any
such method, development, invention and/or improvement is lawfully protected
from disclosure as a trade secret of any third party or by any other lawful bar
to such disclosure.
6.2 Ownership of Patent Rights, Copyrights, and Trade Secrets. To
the fullest extent permitted by California law, Employee shall assign, and does
hereby assign, to the Company all of Employee's right, title and interest in and
to all inventions, improvements, developments, trade secrets, discoveries,
computer software, tradenames and trademarks conceived, improved, developed,
discovered or written by Employee, alone or in collaboration with others, during
the term of this Agreement which
relate in any manner to the Company Business, whether or not the same shall be
conceived, improved, developed, discovered or written during customary working
hours on the Company's premises. During the term of this Agreement Employee
shall promptly and fully disclose to the Company all matters within the scope of
this Section 6.2, and shall, upon request of the Company, execute, acknowledge,
deliver and file any and all documents necessary or useful to vest in the
Company all of Employee's right, title and interest in and to all such matters.
All expenses incurred in connection with the execution, acknowledgment, delivery
and filing of any papers or documents within the scope of this Section 6.2 shall
be borne by the Company. All matters within the scope of this Section 6.2 shall
constitute trade secrets of the Company subject to the provisions of Section
5.2, until such matters cease to be trade secrets by operation of law.
Notwithstanding the foregoing, however, Employee shall be under no obligation to
assign to the Company any right in or to any invention which qualifies fully
under the provisions of Section 2870 of the California Labor Code, which section
is reproduced in Exhibit A attached hereto.
7. Insurance. The Company shall have the right to take out life,
health, accident, "key-man" or other insurance covering Employee, in the name of
the Company and at the Company's expense in any amount deemed appropriate by the
Company. Employee shall assist the Company in obtaining such insurance,
including, without limitation, submitting to any required examinations and
providing information and data required by insurance companies.
8. Termination.
8.1 Death or Total Disability of Employee. If Employee dies or
becomes totally disabled during the term of this Agreement, Employee's
employment hereunder shall automatically terminate. For these purposes Employee
shall be deemed totally disabled if Employee shall become physically or mentally
incapacitated or disabled or otherwise unable fully to discharge Employee's
duties hereunder for a period of 90 consecutive calendar days or for 120
calendar days in any 180 calendar-day period.
8.2 Termination for Good Cause. Employee's employment hereunder may
be terminated by the Company for "good cause." The term "good cause" is defined
as any one or more of the following occurrences:
(a) Employee's breach of any of the covenants contained in Section
5 of this Agreement;
(b) Employee's conviction by, or entry of a plea of guilty or nolo
contendere in, a court of competent and final jurisdiction for any crime
involving moral turpitude or punishable by imprisonment in the jurisdiction
involved;
(c) Employee's commission of an act of fraud, whether prior to or
subsequent to the date hereof upon the Company;
(d) Employee's willful failure or refusal to perform Employee's
duties as required by this Agreement for any reason whatsoever (including,
without limitation, Employee's inability to comply with any laws, rules or
regulations of any governmental entity with respect to Employee's employment by
the Company);
(e) Employee's gross negligence, insubordination or material
violation of any duty of loyalty to the Company or any other material misconduct
on the part of Employee;
(f) Employee's commission of any act which is detrimental to the
Company's business or goodwill; or
(g) Employee's breach of any other provision of this Agreement,
provided that termination of Employee's employment pursuant to this subsection
(g) shall not constitute valid termination for good cause unless Employee shall
have first received written notice from the Chief Executive Officer stating
with specificity the nature of such breach and affording Employee at least
fifteen (15) days to correct the breach alleged.
8.3 Return of the Company's Property. If this Agreement is
terminated for any reason whatsoever, the Company shall have the right, at its
option, to require Employee to vacate his offices prior to the effective date of
termination and to cease all activities on the Company's behalf. Upon the
termination of his employment in any manner, Employee shall immediately
surrender to the Company all lists, books and records of, or in connection with,
the Company's business, and all other property belonging to the Company, it
being distinctly understood that all such lists, books and records, and other
documents, are the property of the Company.
9. Arbitration. Any claim or controversy arising out of or relating
to this Agreement shall be settled by arbitration in Los Angeles, California, in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association, and judgment on the award rendered by the arbitrators may be
entered in any court having jurisdiction. There shall be three arbitrators, one
to be chosen directly by each party at will, and the third arbitrator to be
selected by the two arbitrators so chosen. Each party shall pay the fees of the
arbitrator it selects and of its own attorneys, the expenses of its witnesses
and all other expenses connected with presenting its case. Other costs of the
arbitration, including the cost of any record or transcripts of the arbitration,
administrative fees, the fee of the third arbitrator, and all other fees and
costs, shall be borne equally by the parties.
10. General Relationship. Employee shall be considered an employee of
the Company within the meaning of all federal, state and local laws and
regulations including, but not limited to, laws and regulations governing
unemployment insurance, workers' compensation, industrial accident, labor and
taxes.
11. Miscellaneous.
11.1 Modification; Prior Claims. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter hereof and may
be modified only by a written instrument duly executed by each party. Employee
hereby waives any claims that may exist on the date hereof arising from his
prior employment, if any, with the Company, other than for compensation payable
or reimbursement of reasonable expenses, all as incurred in the ordinary course
of business.
11.2 Assignment. The rights of the Company under this Agreement may be
assigned by the Company, in its sole and unfettered discretion, to any person,
firm, corporation or other business entity which at any time, whether by
purchase, merger or otherwise, directly or indirectly, acquires all or
substantially all of the assets or business of the Company or an affiliate of
the Company.
11.3 Survival. The covenants, agreements, representations and
warranties contained in or made pursuant to this Agreement shall survive
Employee's termination of employment.
11.4 Third-Party Beneficiaries. This Agreement does not create, and
shall not be construed as creating, any rights enforceable by any person not a
party to this Agreement.
11.5 Waiver. The failure of either party hereto at any time to enforce
performance by the other party of any provision of this Agreement shall in no
way affect such party's rights thereafter to enforce the same, nor shall the
waiver by either party of any breach of any provision hereof be deemed to be a
waiver by such party of any other breach of the same or any other provision
hereof.
11.6 Hiring At Will. Any continuance of Employee's employment by the
Company after the term hereof shall be deemed a hiring at will (unless such
continuance is the subject of a new written agreement) and shall be subject to
termination with or without cause by either party upon delivery of
notice thereof.
11.7 Section Headings. The headings of the several sections in this
Agreement are inserted solely for the convenience of the parties and are not a
part of and are not intended to govern, limit or aid in the construction of any
term or provision hereof.
11.8 Notices. All notices, requests and other communications hereunder
shall be in writing and shall be delivered by courier or other means of personal
service (including by means of a nationally recognized courier service or
professional messenger service), or sent by telex or telecopy or mailed first
class, postage prepaid, by certified mail, return receipt requested, in all
cases, addressed to:
Company:
iMALL, Inc.
000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxxx
With a copy to:
Xxxxxx & Xxxxxxx
000 Xxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxxx.
Employee:
Xxxxxx Xxxxxx
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With a copy to:
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Attention:
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All notices, requests and other communications shall be deemed given on the date
of actual receipt or delivery as evidenced by written receipt, acknowledgement
or other evidence of actual receipt or delivery to the address. In case of
service by telecopy, a copy of such notice shall be personally delivered or sent
by registered or certified mail, in the manner set forth above, within three
business days thereafter. Any
party hereto may from time to time by notice in writing served as set forth
above designate a different address or a different or additional person to which
all such notices or communications thereafter are to be given.
11.9 Severability. All Sections, clauses and covenants contained in
this Agreement are severable, and in the event any of them shall be held to be
invalid by any court, this Agreement shall be interpreted as if such invalid
Sections, clauses or covenants were not contained herein.
11.10 Governing Law and Venue. This Agreement is to be governed by and
construed in accordance with the laws of the State of California applicable to
contracts made and to be performed wholly within such State, and without regard
to the conflicts of laws principles thereof. Any suit brought hereon shall be
brought in the state or federal courts sitting in Los Angeles, California, the
parties hereto hereby waiving any claim or defense that such forum is not
convenient or proper. Each party hereby agrees that any such court shall have in
personam jurisdiction over it and consents to service of process in any manner
authorized by California law.
11.11 Non-transferability of Interest. None of the rights of Employee
to receive any form of compensation payable pursuant to this Agreement shall be
assignable or transferable except through a testamentary disposition or by the
laws of descent and distribution upon the death of Employee. Any attempted
assignment, transfer, conveyance, or other disposition (other than as aforesaid)
of any interest in the rights of Employee to receive any form of compensation to
be made by the Company pursuant to this Agreement shall be void.
11.12 Attorneys' Fees. Subject to the provisions of Section 9 hereof
with respect to arbitration, if any legal action, arbitration or other
proceeding is brought for the enforcement of this Agreement, or because of any
alleged dispute, breach, default or misrepresentation in connection with this
Agreement, the successful or prevailing party shall be entitled to recover
reasonable attorneys' fees and other costs it incurred in that action or
proceeding, in addition to any other relief to which it may be entitled.
11.13 Gender. Where the context so requires, the use of the masculine
gender shall include the feminine and/or neuter genders and the singular shall
include the plural, and vice versa, and the word "person" shall include any
corporation, firm, partnership or other form of association.
11.14 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement.
11.15 Construction. The language in all parts of this Agreement shall
in all cases be construed simply, according to its fair meaning, and not
strictly for or against any of the parties hereto. Without limitation, there
shall be no presumption against any party on the ground that such party was
responsible for drafting this Agreement or any part thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date hereinabove set forth.
THE COMPANY
iMALL, Inc.
By: /s/ Xxxxxxx Xxxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxxx
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Title:
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EMPLOYEE
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
