EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into this 11th
day of April, 2000, by and between ENTERTAINMENT BOULEVARD, INC. ("Company"), a
Nevada corporation, and XXXXXXX XXXXX ("Employee"), with reference to the
following facts:
WHEREAS, Company wishes to continue to employ Employee as a full-time
employee of Company, and Employee wishes to accept such employment, upon the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the terms and conditions and the mutual
agreements and covenants set forth herein, the parties hereto agree as follows:
1. SCOPE OF EMPLOYMENT; TERMINATION OF PRIOR AGREEMENT.
1.1 CAPACITY. Company hereby agrees to continue to employ Employee,
and Employee hereby accepts such employment, as President and Chief Executive
Officer of Company during the term of this Agreement. Employee shall report to
the Board of Directors of Company and perform the services and duties
customarily incident to such office and as otherwise decided upon by the Board
of Directors.
1.2 DEVOTION OF SERVICES. Employee shall be a full-time employee of
Company during the term of this Agreement. Employee shall not participate in any
activities which may interfere with his duties hereunder and/or which are
competitive with Employer's activities. Employee shall perform and discharge
well and faithfully those duties assigned him by Company.
1.3 PRIOR AGREEMENT. This Agreement supersedes that certain Employment
Agreement entered into on November 1, 1999, between Company and Employee ("Prior
Employment Agreement") and the parties hereby agree that the Prior Employment
Agreement is hereby terminated.
2. TERM. Subject to Section 6 herein, the term of this Agreement shall
commence as of April 11, 2000, and shall continue and remain in full force and
effect for a period of three (3) years. However, in the event that Company
thereafter continues to employ Employee, this Agreement shall be deemed
automatically renewed upon the same terms and conditions set forth herein except
(a) that the parties may mutually agree to revise any of the terms set forth
herein, and (b) the employment relationship will be on an "at will" basis, which
means that, subject to Section 6.4 herein, either Company or Employee may elect
to terminate the employment relationship at any time for any reason whatsoever,
with or without cause. Employee acknowledges that no representation has been
made by Company as to any minimum or specified term or length of employment
following the term set forth above.
3. COMPENSATION.
3.1 SALARY AND BONUS. In consideration of the services to be rendered
by Employee hereunder, including without limitation any services rendered as an
officer or director of Company or any subsidiary or affiliate thereof, during
the term of this Agreement Company shall pay to Employee the following:
(a) A salary in the amount of $350,000.00 per annum. The Board of
Directors may, at its sole and absolute discretion, increase Employee's salary;
provided, however, Employee's annual salary shall be increased at the end of
each twelve (12) month period by at least 15% over the previous year.
(b) The Company's Board of Directors may, but shall not be obligated
to, award bonuses to Employee based upon his performance and the Company's
profitability.
(c) All payments to Employee shall be subject to the regular
withholding requirements of all appropriate governmental taxing authorities.
3.2 OTHER BENEFITS. Employee shall be entitled to participate in any
medical and insurance plan which Company is presently providing or may provide
to its senior executives. Employee acknowledges that the terms of such plans may
change from time to time.
3.3 EXPENSES. Company will advance to or reimburse Employee for all
reasonable travel and entertainment required by Company and other reasonable
expenses incurred by Employee in connection with the performance of his services
under this Agreement in accordance with Company policy as established from time
to time. In addition, Employee shall receive an automobile lease allowance of
$1,500.00 per month and, in addition, Company shall pay for gas, maintenance and
repairs of said automobile.
4. INVENTIONS.
4.1 RIGHT TO INVENTIONS. Employee agrees that any discoveries,
inventions or improvements of whatever nature (collectively "Inventions") made
or conceived by Employee, solely or jointly with others, during the term of his
employment with Company, that relate, at the time of conception of or reduction
to practice, to the business of Company or Company's actual or demonstrably
anticipated research or development; or that result from any work performed by
Employee for Company, shall belong to Company. Employee also agrees that Company
shall have the right to keep any such Inventions as trade secrets, if Company so
chooses.
4.2 ASSIGNMENT OF INVENTIONS AND PATENTS. In furtherance of, and not
in contravention, limitation and/or in place of, the provisions of Section 4.1
above, Company hereby notifies Employee of California Labor Code Section 2870,
which provides:
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"Any provision in an employment agreement which provides that
an employee shall assign or offer to assign any of his or her rights in
an invention to his or her employer shall not apply to an invention for
which no equipment, supplies, facility, or trade secret information of
the employer was used and which was developed entirely on the
employee's own time, and (a) which does not relate (1) directly or
indirectly to the business of the employer or (2) to the employer's
actual or demonstrably anticipated research or development, or (b)
which does not result from any work performed by the employee for the
employer. Any provision which purports to apply to such an invention is
to that extent against the public policy of this state and is to that
extent void and unenforceable."
Employee acknowledges that he has been notified by the Company of this law,
and understands that this Agreement does not apply to Inventions which are
otherwise fully protected under the provisions of said Labor Code Section 2870.
Therefore, Employee agrees to promptly disclose in writing to the Company all
Inventions, whether Employee personally considers them patentable or not, which
Employee alone, or with others, conceives or makes during his employment with
Company or as is otherwise required and set forth under Section 4.1 above.
Company shall hold said information in strict confidence to determine the
applicability of California Labor Code Section 2870 to said Invention and, to
the extent said Section 2870 does not apply, Employee hereby assigns and agrees
to assign all his right, title and interest in and to those Inventions which
relate to business of the Company and Employee agrees not to disclose any of
these Inventions to others without the prior written express consent of Company.
Employee agrees to notify Company in writing prior to making any disclosure or
performing any work during the term of his employment with Company which may
conflict with any proprietary rights or technical know-how claimed by Employee
as his property. In the event Employee fails to give Company notice of such
conflict, Employee agrees that Employee shall have no further right or claim
with respect to any such conflicting proprietary rights or technical know-how.
5. CONFIDENTIALITY.
5.1 RESTRICTIONS ON USE OF TRADE SECRETS AND RECORDS. During the term
of his employment, Employee will have access to and become acquainted with
various trade secrets of Company, consisting of formulas, patterns, devices,
secret Inventions, processes, compilations of information, records and
specifications (collectively "Trade Secrets"), all of which are owned by Company
and used in the operation of Company's business. Additionally, Employee will
have access to and may become acquainted with various files, records, customer
lists, documents, drawings, specifications, equipment and similar items relating
to the business of Company (collectively "Confidential Information"). All such
Trade Secrets and Confidential Information, whether they are designed, conceived
or prepared by Employee or come into Employee's possession or knowledge in any
other way, are and shall remain the exclusive property of Company and shall not
be removed from the premises of Company under any circumstances whatsoever
without the prior written consent of Company. Employee promises and agrees that
he will not use for himself or for others, or divulge or disclose to any other
person or entity, directly or indirectly, either during
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the term of his employment by Company or at any time thereafter, for his own
benefit or for the benefit of any other person or entity or for any reason
whatsoever, any of the Trade Secrets or Confidential Information described
herein, which he may conceive, develop, obtain or learn about during or as a
result of his employment by Company unless specifically authorized to do so in
writing by Company.
5.2 NON-INTERFERENCE. Employee recognizes that Company has invested
substantial effort in assembling its present employees and in developing its
customer base. As a result, and particularly because of Company's many types of
confidential business information, Employee understands that any solicitation of
a customer or employee of Company, in an effort to get them to change business
affiliations, would presumably involve a misuse of Company's confidences, Trade
Secrets and Confidential Information. Employee therefore agrees that, for a
period of one (1) year from the later of the date of termination of Employee's
employment with Company for any reason whatsoever or the receipt by Employee of
any compensation paid to Employee by Company, Employee will not influence, or
attempt to influence, existing employees or customers of Company in an attempt
to divert, either directly or indirectly, their services or business from
Company.
6. TERMINATION OF AGREEMENT.
6.1 TERMINATION BY COMPANY. Company may terminate Employee's
employment hereunder at any time for cause without payment of severance or
similar benefits. For purposes of this Section 6.1, "cause" shall mean the
following events: (a) any willful breach of duty by Employee in the course of
his employment, (b) the breach of any provision of this Agreement or any
misrepresentation by Employee hereunder, (c) misconduct, neglect or negligence
in the performance of Employee's duties and obligations, (d) disloyal,
dishonest, willful misconduct, illegal, immoral or unethical conduct by
Employee, (e) such carelessness or inefficiency in the performance of his duties
that Employee is unfit to continue in the service of Company, (f) failure of
Employee to comply with the policies or directives of Company and/or failure to
take direction from Company's Board of Directors, or (g) such other conduct
which is substantially detrimental to the best interests of Company. Any such
termination shall become effective upon delivery of written notice to Employee.
6.2 TERMINATION BY EMPLOYEE. Employee may terminate his employment
hereunder at any time for cause. For purposes of this Section 6.2, "cause" shall
mean the breach of any provision of this Agreement by Company which is not cured
within thirty (30) days after Employee delivers written notice to the Company's
Board of Directors describing such breach. If the breach is not so cured within
such thirty (30) days after delivery of such notice, the termination of
employment shall become effective after the expiration of such cure period.
6.3 DEATH OR DISABILITY. Employee's employment with Company shall
cease upon the date of his death. In the event Employee becomes physically or
mentally disabled so as to become unable for more than one hundred eighty (180)
days in the aggregate in any twelve
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(12) month period to perform his duties on a full-time basis with reasonable
accommodations, Company may, at its sole discretion, terminate this Agreement
and Employee's employment.
6.4 TERMINATION FOLLOWING AUTOMATIC RENEWAL. In the event that this
Agreement is automatically renewed pursuant to Paragraph 2 herein, either
Company or Employee may terminate Employee's employment hereunder at any time
and for any reason whatsoever, with or without cause, upon thirty (30) days
prior written notice delivered to the other party.
6.5 EFFECT OF TERMINATION. Upon the termination of Employee's
employment hereunder or the expiration or termination of the Agreement, (a)
Company shall pay Employee all compensation accrued and outstanding as of the
date of such termination or expiration, and (b) notwithstanding anything to the
contrary contained herein, the rights and obligations of each party under
Paragraphs 4, 5 and 8 herein shall survive such termination or expiration.
Notwithstanding anything to the contrary contained in this Agreement, if, prior
to the end of the initial three (3) year term, Employer terminates this
Agreement without cause, Employee shall continue to be entitled to receive all
of the compensation and other benefits provided for in Paragraph 3 for the
remainder of said three (3) year term without any deduction or offset for any
compensation earned or received by Employee from any other sources.
7. EMPLOYEE'S REPRESENTATIONS. As an inducement for Company to execute this
Agreement, Employee represents and warrants to Company that the negotiation,
execution and delivery of this Agreement by Employee together with the
performance of his obligations hereunder does not breach or give rise to a
breach under any employment, confidentiality, non-disclosure, non-competition or
any other agreement, written or oral, to which Employee is a party.
8. EQUITABLE REMEDIES.
8.1 INJUNCTIVE RELIEF. Employee acknowledges and agrees that the
covenants set forth in Paragraphs 4 and 5 herein are reasonable and necessary
for protection of Company's business interests, that irreparable injury will
result to Company if Employee breaches any of the terms of said covenants and
that, in the event of Employee's actual or threatened breach of said covenants,
Company will have no adequate remedy at law. Employee accordingly agrees that in
the event of actual or threatened breach of any of such covenants, Company shall
be entitled to immediate injunctive and other equitable relief, without bond and
without the necessity of showing actual monetary damages. Nothing contained
herein shall be construed as prohibiting Company from pursuing any other
remedies available to it for such breach or threatened breach, including the
recovering of any damages which it is able to prove. Each of the covenants in
Paragraphs 4 and 5 shall be construed as independent of any other covenants or
provisions of this Agreement. In the event of any judicial determination that
any of the covenants set forth in Paragraphs 4 and 5 herein or any other
provisions of the Agreement are not fully enforceable, it is the intention and
desire of the parties that the court treat said covenants as having been
modified to the extent deemed necessary
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by the court to render them reasonable and enforceable and that the court
enforce them to such extent.
8.2 SPECIFIC ENFORCEMENT. Employee agrees and acknowledges that he is
obligated under this Agreement to render services of a special, unique, unusual,
extraordinary and intellectual character, thereby giving this Agreement peculiar
value, so that the loss thereof could not be reasonable or adequately
compensated in damages in an action at law. Therefore, in addition to other
remedies provided by law, Company shall have the right, during the term of this
Agreement, to obtain specific performance hereof by Employee and to obtain
injunctive relief against the performance of service elsewhere by Employee
during the term of this Agreement.
9. GENERAL.
9.1 ENTIRE AGREEMENT. This Agreement contains the entire understanding
between the parties hereto and supersedes all other oral and written agreements
or understandings between them.
9.2 AMENDMENT. This Agreement may not be modified, amended, altered or
supplemented except by written agreement between Employee and Company.
9.3 COUNTERPARTS. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
9.4 JURISDICTION. Each party hereby consents to the exclusive
jurisdiction of the state and federal courts sitting in Los Angeles County,
California, in any action on a claim arising out of, under or in connection with
this Agreement or the transactions contemplated by this Agreement. Each party
further agrees that personal jurisdiction over him may be effected by service of
process by registered or certified mail addressed as provided in Section 9.9
herein, and that when so made shall be as if served upon him personally within
the State of California.
9.5 EXPENSES. In the event an action at law or in equity is required
to enforce or interpret the terms and conditions of this Agreement, the
prevailing party shall be entitled to reasonable attorney's fees and costs in
addition to any other relief to which that party may be entitled.
9.6 INTERPRETATION. The headings herein are inserted only as a matter
of convenience and reference, and in no way define, limit or describe the scope
of this Agreement or the intent of any provisions thereof. No provision of this
document is to be interpreted for or against any party because that party or
party's legal representative drafted it.
9.7 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon, and
inure to the benefit of, the parties hereto and their heirs, successors, assigns
and personal
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representatives. As used herein, the successors of Company shall include, but
not be limited to, any successor by way of merger, consolidation, sale of all or
substantially all of its assets or similar reorganization. In no event may
Employee assign any rights or duties under this Agreement.
9.8 CONTROLLING LAW; SEVERABILITY. The validity and construction of
this Agreement or of any of its provisions shall be determined under the laws of
the State of California. Should any provision of this Agreement be invalid
either due to the duration thereof or the scope of the prohibited activity, such
provision shall be limited by the court to the extent necessary to make it
enforceable and, if invalid for any other reason, such invalidity or
unenforceability shall not affect or limit the validity and enforceability of
the other provisions hereof.
9.9 NOTICES. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if personally received by the
party to whom it is sent or delivered, or if sent by registered or certified
mail, postage prepaid, to Employee's residence in the case of notice to
Employee, or to its principal office if to Company. A notice is deemed received
or delivered on the earlier of the day received or three (3) days after being
sent by registered or certified mail in the manner described in this Section.
9.10 WAIVER OF BREACH. The waiver by any party hereto of a breach of
any provision of this Agreement shall not operate or be construed as a waiver of
any subsequent breach.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
ENTERTAINMENT BOULEVARD, INC.
By: /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx, President
/s/ Xxxxxxx Xxxxx
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XXXXXXX XXXXX
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