Exhibit 10.85
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and effective as of the 1st day of
August, 1999, by and between INDUSTRIAL EXPORTADORA FAMIAN, S.A. de C.V., a
corporation formed under the laws of the United Mexican States (the "Company").
and Mario Xxxxxxx Xxxxxx Xxxxx (the "Employee"), with respect to the following
facts:
A. On the date hereof, the Company has purchased all the
issued and outstanding shares (the "Shares") of the capital stock of Industrial
Exportadora Famian, S.A. de C.V. and Coordinados Elite, S.A. de C.V. (the
"Manufacturers").
B. As a material condition to the Company's purchase of the
Shares, each of the Employees has agreed to be employed by the Company, on the
terms and conditions set forth in this Agreement.
C. ACCORDINGLY, on the basis of the representations,
warranties and covenants contained herein, the parties hereto agree as follows:
5. EMPLOYMENT
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5.1 Employment. The Company hereby employs the Employee as
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Finished Product Director of each of the Manufacturers, and the Employee hereby
accepts such employment, on the terms and conditions set forth below, to perform
during the term of this Agreement such services as are required hereunder.
1.2 Duties. The Employee shall render such services to each
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of the Manufacturers, and shall perform such duties and acts, at such times and
places, as reasonably may be required by the Board of Directors of the
Manufacturers in connection with any aspect of the Manufacturers' businesses.
1.3 Performance of Duties. The Employee shall devote his
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entire productive time, ability and attention to his duties hereunder and shall
diligently and conscientiously use his best efforts to further the
Manufacturers' business.
1.4 Trade Secrets. The Employee shall not, without the prior
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written consent of the Company's Board of Directors in each instance, disclose
or use in any way, either during his employment by the Company or thereafter,
except as required in the course of such employment, any confidential business
or technical information or trade secret of the Company acquired in the course
of such employment, whether or not patentable, copyrightable or otherwise
protected by law, and whether or not conceived of or prepared by him
(collectively, the "Trade Secrets"), including, without limitation, any
confidential information concerning customer lists, products, procedures,
operations, investments, financing, costs, employees, purchasing, accounting,
marketing, merchandising, sales, salaries, pricing, profits and plans for future
development, the identity, requirements, preferences, practices and methods of
doing business of specific parties with whom the Company transacts business, and
all other information which is related to any product, service or business of
the Company, other than information which is generally known in the industry in
which the Company transacts business or is acquired from public sources or was
known to the Employee prior to the date hereof; all of which Trade Secrets are
the exclusive and valuable property of the Company.
1.5 Tangible Items. All files, accounts, records, documents,
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books, forms, notes, reports, memoranda, studies, compilations of information,
correspondence and all copies, abstracts and summaries of the foregoing, and all
other physical items related to the Company, other than a merely personal item,
whether of a public nature or not, and whether prepared by the Employee or not,
are and shall remain the exclusive property of the Company and shall not be
removed from the premises of the
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Company, except as required in the course of employment by the Company. without
the prior written consent of the Company's Board of Directors in each instance,
and the same shall be promptly returned to the Company by the Employee on the
expiration or termination of his employment by the Company or at any time prior
thereto upon the request of the Company.
1.6 Solicitation of Employees. During his employment by the
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Company and for one (1) year thereafter (such period not to include any period
of violation hereof by the Employee or period which is required for litigation
to enforce this paragraph and during which the Employee is in violation hereof),
the Employee shall not, directly or indirectly, either for his own benefit
purposes or the benefit of purposes of any other person employ or offer to
employ, call on, solicit, interfere with or attempt to divert or entice away any
employee or independent contractor of the Company (or any person whose
employment or status as an independent contractor has terminated within the
twelve (12) months preceding the date of such solicitation) in any capacity if
that person possesses or has knowledge of any Trade Secrets of the Company.
1.7 Injunctive Relief. The Employee hereby acknowledges and
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agrees that it would be difficult to fully compensate the Company for damages
resulting from the breach or threatened breach of Sections 1.4, 1.5 or 1.6 and,
accordingly, that the Company shall be entitled to temporary and injunctive
relief, including temporary restraining orders, preliminary injunctions and
permanent injunctions, to enforce such provisions without the necessity of
proving actual damages and without the necessity of posting any bond or other
undertaking in connection therewith. This provision with respect to injunctive
relief shall not, however, diminish the Company's right to claim and recover
damages.
1.8 Liquidated Damages. The Employee acknowledges and agrees
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that the breach or threatened breach of Sections 1.4, 1.5 or 1.6 would result in
substantial damage to the businesses of the Company and that it is and will be
impracticable to determine the actual monetary amount of such damages.
Accordingly, the Employee and the Company hereby agree that such damages shall
be presumed to be in the amount of U.S. $996,675.20 and, in the event of the
breach or the threatened breach of Sections 1.4, 1.5 or 1.6, the Employee shall
pay to the Company in cash an amount equal to U.S. $996,675.20 and, to the
extent that the Company then owes to the Employee any amount under this
Agreement, that certain Agreement for Purchase of Stock dated as of August 1,
1999, the Company may set off against such amount a sum equal to U.S.
$996,675.20. This provision with respect to the liquidated damages reflects the
parties' best estimate of the actual damages that would be sustained by the
Company in the event of the breach or threatened breach of Sections 1.4, 1.5 or
1.6 and not a penalty or forfeiture. The Employee's obligations under this
Section 1.8 shall be in addition to any liability he may have to the Company as
a result of the breach or threatened breach of Sections 1.4, 1.5 or 1.6.
1.9 "Company". For the purposes of Sections 1.4, 1.5, 1.6.
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1.7 and 1.8, the term "Company" shall mean Tag Mex, Inc. and each of its parent,
subsidiary and affiliated companies, including, but not limited to, the
Manufacturers.
2.0 COMPENSATION
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2.1 Compensation. As the total consideration for the services
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which the Employee renders hereunder, the Employee shall be entitled to the
following:
(i) an annual base salary of U.S. $120,000.00, less any
applicable deduction therefrom for income tax or other applicable
withholdings, payable semi-monthly;
(ii) participation in all plans or programs sponsored by the
Manufacturers for employees in general, including, but not limited to,
participation in any group health plan, medical reimbursement plan, life
insurance plan, pension and profit sharing plan, or stock option plan.
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3. TERM AND TERMINATION
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3.1 Term. Unless sooner terminated pursuant to Section 3.2
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hereof, the term of the Employee's relationship with the Company under Section
1.1 shall be for the period (the "Term") commencing on the date hereof and
ending on December 31, 2002.
3.2 At Will Relationship. The Employee and the Company each
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hereby acknowledges and agrees that, except as expressly set forth in Section
3.3, (i) the Employee's relationship with the Company under this Agreement is AT
WILL and can be terminated at the option of either the Employee or the Company
in his or its sole and absolute discretion, for any or no reason whatsoever,
with or without cause, (ii) no representations, warranties or assurances have
been made concerning the length of such relationship or the aggregate amount of
compensation to be received by the Employee and (iii) after the termination of
his employment by the Company, the Employee shall have no right, title or
interest in or claim to any revenues received by the Company from any person for
any goods sold or services rendered by the Company to such person, whether or
not the Employee was the cause, in whole or in part, for such person to purchase
such goods from the Company or to retain the Company to perform such services.
3.3 Duties Upon Termination. In the event that the Employee's
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employment by the Company under this Agreement is terminated, neither the
Company nor the Employee shall have any remaining duties or obligations
hereunder, except that (i) the Company shall promptly pay to the Employee, or
his estate, all reimbursable expenses incurred by the Employee hereunder as of
such date and such compensation as is due pursuant to Section 2.1, prorated
through the date of termination, and (ii) the Employee shall continue to be
bound by Sections 1.4, 1.5, 1.6 and 1.7.
4. MISCELLANEOUS
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4.1 Severable Provisions. The provisions of this Agreement
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are severable, and if any one or more provisions may be determined to be illegal
or otherwise unenforceable, in whole or in part, the remaining provisions, and
any partially unenforceable provisions to the extent enforceable, shall
nevertheless be binding and enforceable.
4.2 Successors and Assigns. All of the terms, provisions and
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obligations of this Agreement shall inure to the benefit of and shall be binding
upon the parties hereto and their respective heirs, representatives, successors
and assigns. Notwithstanding the foregoing, neither this Agreement nor any
rights hereunder shall be assigned, pledged, hypothecated or otherwise
transferred by the Employee without the prior written consent of the Company in
each instance.
4.3 Governing Law. The validity, construction and
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interpretation of this Agreement shall be governed in all respects by the laws
of the State of California applicable to contracts made and to be performed
wholly within that State.
4.4 Consent to Jurisdiction. Each party hereto, to the
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fullest extent it may effectively do so under applicable law, irrevocably (i)
submits to the exclusive jurisdiction of any court of the State of California or
the United States of America sitting in the City of Los Angeles over any suit,
action or proceeding arising out of or relating to this Agreement, (ii) waives
and agrees not to assert, by way of motion, as a defense or otherwise, any claim
that it is not subject to the jurisdiction of any such court, any objection that
it may now or hereafter have to the establishment of the venue of any such suit,
action or proceeding brought in any such court and any claim that any such suit,
action or proceeding brought in any such court has been brought in an
inconvenient forum, (iii) agrees that a final judgment in any such suit, action
or proceeding brought in any such court shall be conclusive and binding upon
such party and may be enforced in the courts of the United States of America,
the State of California or the United Mexican States (or any other courts to the
jurisdiction of which such party is or may be subject) by a suit upon such
judgment and (iv) consents to process being served in any such suit, action or
proceeding by mailing a copy thereof by registered or certified air mail,
postage prepaid, return receipt requested, to
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CT Corporation at 000 Xxxx Xxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000 (and
each party hereby irrevocably appoints CT Corporation as its lawful agent to
accept such service of process on behalf of such party). Each party agrees that
such service (i) shall be deemed in every respect effective service of process
upon such party in any such suit, action or proceeding and (ii) shall, to the
fullest extent permitted by law, be taken and held to be valid personal service
upon and personal delivery to such party.
4.5 Headings. Section and subsection headings are not to be
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considered part of this Agreement and are included solely for convenience and
reference and in no way define, limit or describe the scope of this Agreement or
the intent of any provisions hereof.
4.6 Entire Agreement. This Agreement constitutes the entire
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agreement between the parties hereto pertaining to the subject matter hereof,
and supersedes all prior agreements, understandings, negotiations and
discussions, whether oral or written, relating to the subject matter of this
Agreement. No supplement, modification, waiver or termination of this Agreement
shall be valid unless executed by the party to be bound thereby. No waiver of
any of the provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provisions hereof (whether or not similar), nor shall such
waiver constitute a continuing waiver unless otherwise expressly provided.
Nothing in this Agreement shall impede the parties' exercise of their respective
rights under that certain Agreement for Purchase of Assets of even date
herewith, between the parties hereto, among others, or the other agreements
referred to therein.
4.7 Notices. Any notice or other communication required or
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permitted hereunder shall be in writing and shall be deemed to have been given
(i) if personally delivered, when so delivered, (ii) if mailed, one (1) week
after having been placed in the United States mail, registered or certified,
postage prepaid, addressed to the party to whom it is directed at the address
set forth below or (iii) if given by telex or telecopier, when such notice or
other communication is transmitted to the telex or telecopier number specified
below and the appropriate answerback or telephonic confirmation is received.
Either party may change the address to which such notices are to be addressed by
giving the other party notice in the manner herein set forth.
4.8 Attorneys' Fees. In the event any party takes legal
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action to enforce any of the terms of this Agreement, the unsuccessful party to
such action shall pay the successful party's expenses, including attorneys'
fees, incurred in such action.
4.9 Third Parties. Nothing in this Agreement, expressed or
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implied, is intended to confer upon any person other than the Company or the
Employee any rights or remedies under or by reason of this Agreement.
4.10 Construction. This Agreement was reviewed by legal
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counsel for each party hereto and is the product of informed negotiations
between the parties hereto. If any part of this Agreement is deemed to be
unclear or ambiguous, it shall be construed as if it were drafted jointly by the
parties. Each party hereto acknowledges that no party was in a superior
bargaining position regarding the substantive terms of this Agreement.
4.11 Arbitration. Any controversy arising out of or relating
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to this Agreement or the transactions contemplated hereby shall be referred to
arbitration before the American Arbitration Association strictly in accordance
with the terms of this Agreement and the substantive law of the State of
California. The board of arbitrators shall convene at a place mutually
acceptable to the parties in the State of California and, if the place of
arbitration cannot be agreed upon, arbitration shall be conducted in Los
Angeles. The parties hereto agree to accept the decision of the board of
arbitrators, and judgment upon any award rendered hereunder may be entered in
any court having jurisdiction thereof. Neither party shall institute a
proceeding hereunder until that party has furnished to the other party, by
registered mail, at least thirty (30) days prior written notice of its intent to
do so.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date and year first set forth above.
Company: INDUSTRIAL EXPORTADORA FAMIAN, S.A. de C.V.
By /s/ Xxxxxx Xxxx
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Authorized Representative
0000 Xxxx Xxxxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: President
Telecopier:(000) 000-0000
Employee: /s/ Mario Xxxxxxx Xxxxxx Xxxxx
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Mario Xxxxxxx Xxxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx No. 200
Fraccionamiento Reforma, C.P. 75770
Tehuacan, Puebla
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