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EXHIBIT 10.19
INTERNATIONAL TRADING & MANUFACTURING CORPORATION
EXECUTIVE
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT between International Trading & Manufacturing Corporation,
a Nevada corporation ("ITM" or the "COMPANY") and Xxxxx Xxxxx, ("EXECUTIVE")
dated as of January 1, 1999 (the "EFFECTIVE DATE") .
WHEREAS, ITM wishes to employ Executive and Executive wishes to be employed by
ITM, all on the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the mutual covenants set forth below and for
other good and valuable consideration, the adequacy and sufficiency is hereby
acknowledged, the parties agree as follows:
1) POSITION AND TERM:
a) ITM hereby employs Executive for three (3) years from the
Effective Date (the "TERM") as Vice President Sales to provide
executive services in connection with the development of its
Baby Genius business and perform such other duties consistent
with Executive's office as may be directed by the Board of
Directors, CEO, President or Executive Vice President.
b) As an officer of the Company Executive may contractually bind
the Company subject to prior written authorization from the CEO,
President, CFO, Executive Vice President or Board of Directors.
2) EXECUTIVE TO DEVOTE FULL TIME TO COMPANY. Executive shall devote full
time, attention, and energies to the business of the Company, and,
during this employment, will not engage in any other business activity,
regardless of whether such activity is pursued for profit, gain, or
other pecuniary advantage. Executive is not prohibited from making
personal investments in any other businesses provided those investments
do not require active involvement in the operation of said companies.
3) COMPENSATION AND BENEFITS: ITM shall pay, provide and grant to Executive
the following salary and benefits:
a) Annual Salary: $45,000
b) Grant of Options: A grant of options as provided in the
Non-Qualified Stock Option Agreement attached hereto as Exhibit
A and subject to the terms and conditions of the Company's
Non-Qualified Stock Option Plan attached hereto as Exhibit B.
c) Medical and Other Benefits: As determined by the Board in its
sole discretion, provided that all benefits are on terms no less
favorable than those provided to all other executives, including
senior executives, of the Company, including, to the extent
applicable:
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i) Medical and health insurance for Executive and
dependants;
ii) Medical expense reimbursement plan;
iii) Retirement, pension and 401(k) plans; and
iv) Life, disability and key-man insurance.
d) Vacation: Three (3) weeks per year, any unused days of which may
be rolled-over into following year; and three (3) personal days.
e) Other Benefits/ Reimbursement: Reimbursement of reasonable
out-of-pocket expenses incurred on Company business and
pre-approved in writing by the CEO, President, or CFO of the
Company.
4) DEATH BENEFITS. Should Executive die during the term of employment, the
Company shall pay to Executive's estate any compensation and other
benefits due through the end of the month in which death occurred.
5) TERMINATION.
a) Termination by Company Without Cause; Termination by Executive
for Good Reason
i) Notwithstanding anything to the contrary herein and
subject to applicable law, the Company may terminate
this Agreement without cause at any time upon thirty
(30) days' prior written notice to Executive.
ii) Notwithstanding anything to the contrary herein,
Executive may terminate this Agreement for Good Reason
at any time upon thirty (30) days' prior written notice
to the Company. "GOOD REASON" means:
(1) the assignment to Executive of any duties
inconsistent with his duties described in
Section 1) above or any removal of Executive
from or any failure to re-elect Executive to his
office and position described in Section 1)
above, except in connection with promotions to
higher office;
(2) the failure by the Company to maintain and to
continue Executive's participation in the
Company's benefit or compensation plans as in
effect immediately prior to the Change in
Control (including but not limited to bonus and
incentive compensation plans, stock option,
bonus, award and purchase plans, life insurance,
medical, health and accident, and disability
plans);
(3) the taking of any action by the Company which
would adversely affect Executive's participation
in or reduce Executive's benefits under any of
the Company's benefit or compensation plans
(including but not limited to bonus and
incentive compensation plans, stock option,
bonus, award and purchase plans, life insurance,
medical, health and accident, and disability
plans);
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(4) the failure by the Company to obtain the
assumption of this Agreement by any successor as
required under Section 12) c) below.
iii) If Executive is terminated without cause or resigns for
Good Reason, the Company shall continue to provide the
compensation and benefits set forth in Section 3) for
the remainder of the Term, except that medical and
health insurance benefits shall only be provided until
the earlier of (1) the end of the Term and (2) the date
on which Executive and his dependants are fully covered
under the medical insurance plan of a new employer.
b) Termination by Executive. Executive may terminate this Agreement
upon thirty (30) days' prior written notice to the Company.
Executive may at his election and subject to the Company's
consent, perform his duties through to the termination date and
the Company shall continue to pay and provide Executive with all
of the compensation and benefits set forth in Section 3) through
to the termination date, but Executive shall not receive any
severance allowance.
c) Termination by Company for Cause. Notwithstanding anything to
the contrary contained herein and subject to applicable law, the
Company may terminate the Executive's employment with immediate
effect if the Board of Directors shall determine in good faith
that any of the following has occurred: (i) acts or omissions by
the Executive which constitute material misconduct or a knowing
violation of a material written policy of the Company or any of
its subsidiaries (provided Executive has been provided with a
copy of such material written policy), (ii) the Executive or any
affiliated or related person or entity receiving a benefit in
money, property or services from the Company or any of its
subsidiaries or from another person dealing with the Company or
any of its subsidiaries, in material violation of applicable law
or Company policy, (iii) an act of fraud, conversion,
misappropriation, or embezzlement by the Executive or his
conviction of, or entering a guilty plea or plea of no contest
with respect to, a felony, or the equivalent thereof, (iv) a
material breach by the Executive of any provision of Section 8
hereof, (v) the Executive's failure or refusal (whether
intentional, reckless or negligent) to perform his duties under
this Agreement or (vi) any other breach by the Executive of this
Agreement in any material respect. In no event shall the
Executive's termination by the Company be considered to have
been for cause if such termination took place as a result of (1)
the Executive's bad judgment or negligence or (2) any act or
omission without intent of gaining a profit to which the
Executive was not legally entitled or (3) any act or omission
believed by the Executive in good faith to have been in, or not
opposed to, the interests of the Company. If Executive is
terminated for cause, he shall be entitled to the compensation
and other benefits set forth in Section 3) through the last date
of Executive's employment. Upon payment of all obligations under
this Agreement that are then outstanding, this Agreement shall
terminate. Notice of such termination shall be given to
Executive in writing, specifying the reasons for such
termination.
6) SEVERANCE UPON CHANGE IN CONTROL: As of the effective date of a Change
of Control as defined in the Employment Agreement set forth in Exhibit C
hereto, the Company and Executive shall enter into, and shall be deemed
to have entered into, an Employment Agreement substantially identical to
the agreement set forth in Exhibit C, unless such Employment Agreement
has been terminated as provided therein.
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7) PROPRIETARY AND CONFIDENTIAL INFORMATION:
a) All information, data, materials, computer code, intellectual
property rights, customer lists, discoveries, inventions or
processes or improvement in procedures or made or discovered by
Executive during the term of this Agreement in connection with
or in any way affecting or relating to the business of the
Company or capable of being used or adapted for use therein or
in connection therewith is and shall forthwith be deemed to be
"CONFIDENTIAL INFORMATION" and shall be disclosed to the Company
and shall belong to and be the absolute property of the Company.
b) Executive shall, if and when required so to do, whether during
or after the termination of this Agreement, at Employer's
expense apply or join in applying for any patent or trademark
registration or other similar protection in the United States or
in any other part of the world for any such discovery,
invention, process or improvement and shall execute all
instruments and do all things necessary to register the patent,
trademark or other similar protection when obtained and all
right and title to an interest in the same in the Company
absolutely and as sole beneficial owner.
c) Executive shall not at any time either during the term of this
Agreement or any extension thereof or after the termination of
the employment for any reason (i) divulge any Confidential
Information or other affairs or secrets of the Company to any
other company, person or persons without the previous consent in
writing of the Company or (ii) use or attempt to use any
information which Executive may acquire in the course of the
employment in any manner which may injure or cause loss or be
calculated to injure or cause loss to the Company.
d) Upon the termination of this Agreement for any reason, Executive
shall resign without claim for compensation from as a director
(if applicable) of the Company and from all offices held by
Executive in the Company, and in the event of Executive failing
to do so the Company is hereby irrevocably authorized to appoint
some person in Executive's name and on Executive's behalf to
execute any documents and to do all things required to give
effect to the provisions of this Section.
e) Upon the termination of this Agreement for any reason, Executive
shall deliver to the Company all documents used by Executive in
the course of the Company's business, including but without
limiting the foregoing, all price lists, mailing lists,
customer, client or supplier lists, sales information,
catalogues, diaries, log books, computer software and computer
data.
f) Should Executive reveal or threaten to reveal any Confidential
Information, the Company shall be entitled to an injunction
restraining the Executive from disclosing same, or from
rendering any services to any entity to whom such information
has been or is threatened to be disclosed. The right to secure
an injunction is not exclusive, and the Company may pursue any
other remedies it has against the Executive for a breach or
threatened breach of this provision, including the recovery of
damages from the Executive.
8) RESTRICTIVE COVENANT: Executive expressly agrees that it shall not at
any time for one (1) year after the termination of the employment (i)
undertake or carry on or be employed or directly or indirectly be
concerned or interested either as employer, Executive, consultant,
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director or shareholder or (ii) for one (1) year after the termination
of the employment attempt in any way whatsoever to obtain customers or
clients of the Company, in either case in or for any enterprise, person,
firm or company, the principal business of which involves (A) the
production or development or the retail or wholesale selling or
distribution of goods and services that are substantially similar to or
in competition with those sold or provided by the Company or (B) the
sale of memberships in member programs the benefits of which include the
sale or provision of such goods or services. Executive further agrees
during and after the termination of the employment for any reason,
whether for Executive's own account or for any other person or for any
firm or company not to solicit, interfere with or endeavor to entice
away from the Company any employee of the Company or any person, firm or
company who at any time during the continuance of the employment shall
have been a customer or client of the Company.
9) INDEMNITY: Executive shall defend, save and hold harmless the Company
from and against any claims, damages, actions, proceedings or other
losses incurred or suffered by the Company arising out of a material
breach by Executive of the confidentiality provisions herein.
10) GOVERNING LAW; JURISDICTION; VENUE. The Agreement will be interpreted,
construed and enforced in all respects in accordance with the laws of
the State of California, without regard to its conflicts of laws
principles. Each party hereby irrevocably consents to the exclusive
jurisdiction of the state and federal courts San Diego County of the
State of California in connection with any action arising under this
Agreement and waives all defenses regarding the inconvenience of such
forum. THE PARTIES IRREVOCABLY WAIVE THEIR RIGHTS TO A TRIAL BY JURY IN
CONNECTION WITH ANY CLAIM, COUNTERCLAIM OR OTHER PROCEEDINGS ARISING
UNDER OR IN CONNECTION WITH THIS AGREEMENT.
11) MISCELLANEOUS.
a) Integration. This Agreement is the sole contract governing the
relationship between the Company or any predecessor of the
Company and Executive, and supersedes any and all prior
agreements, letters of intent, correspondence, negotiations,
discussions or understandings between the Company or any
predecessor of the Company and the Executive.
b) Severability. If any provision of the Agreement is held invalid
by a court with jurisdiction over the parties to the Agreement,
(i) such provision will be deemed to be restated to reflect as
nearly as possible the original intentions of the parties in
accordance with applicable law and (ii) the remaining terms,
provisions, covenants and restrictions of this Agreement will
remain in full force and effect. If this Agreement is held
invalid or cannot be enforced, then to the full extent permitted
by law any prior agreement between the Company (or any
predecessor thereof) and the Executive shall be deemed
reinstated as if this Agreement had not been executed.
c) Successors. The Company's rights and obligations under this
Agreement will inure to the benefit and be binding upon the
Company's successors and assignees.
d) Amendments. This Agreement may be altered only by a written
agreement signed by the party against whom enforcement of any
waiver, change, modification, extension, or
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discharge is sought.
e) Notices. Any notice, approval, request, authorization, direction
or other communication under this Agreement will be given in
writing and will be deemed to have been delivered and given for
all purposes (i) on the delivery date if delivered personally to
the party to whom the same is directed; (iii) one business day
after deposit with a commercial overnight carrier, with written
verification of receipt; or (iii) five business days after the
mailing date, whether or not actually received, if sent by U.S.
mail, return receipt requested, postage and charges prepaid, or
any other means of rapid mail delivery for which a receipt is
available. All notices to the Company will be effective if
delivered to ITM Corporation, 00000 Xx Xxxxxx Xxxx, Xxxxx 000,
Xxx Xxxxx, XX 00000, attention: President, or such other address
specified by the Company in writing. All notices to Executive
will be effective if delivered to Executive's last residential
address provided to the Company by Executive.
f) Assignments. The Company will not assign this Agreement or any
right, interest or benefit under this Agreement without the
prior written consent of Executive.
g) Remedies. Except where otherwise specified herein, the rights
and remedies granted to a party under the Agreement are
cumulative and in addition to, and not in lieu of, any other
rights or remedies which the Party may possess at law or in
equity.
h) Limited Effect of Waiver By Company. Should Company waive breach
of any provision of this Agreement by the Executive, such waiver
will not operate or be construed as a waiver of further breach
by the Executive.
i) Counterparts. The Agreement may be executed in counterparts,
each of which will be deemed an original and all of which
together will constitute one and the same document.
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IN WITNESS WHEREOF, parties have signed this Employment Agreement as of the date
first above written.
INTERNATIONAL TRADING & MANUFACTURING CORPORATION
By: /s/ XXXXX XXXXXXX
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Name: Xxxxx Xxxxxxx
Chief Executive Officer
EXECUTIVE
By: /s/ XXXXX XXXXX
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Name: Xxxxx Xxxxx
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