NEW EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into by and between Unico American
Corporation, a Nevada corporation ("Employer") and Xxxxx Xxxxxxx ("Employee"),
as follows:
1. EMPLOYMENT. Employer hereby agrees to employ Employee as a
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Consultant, subject to the terms, conditions and provisions of this Agreement.
Employee hereby accepts such employment and agrees to devote up to eight (8)
hours per day, as may be needed, and all of his knowledge and skill to his
employment with Employer. In connection with the rendition of such services,
Employee shall report to Xxxx X. Cheldin, or to such other person or persons as
designated by Xxxx X. Cheldin or the Board of Directors of Employer and he shall
perform those services as assigned consistent with his position.
2. PERFORMANCE OF SERVICES. During the term of his employment with
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Employer, Employee shall perform no act or fail to perform any act, the
performance or absence of which is or will be disloyal to or in material
derogation of the interests of Employer or any affiliate of Employer under any
circumstances.
3. COMPENSATION.
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a. Base Salary. During the term of his employment, Employee shall
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be paid as follows:
(1) From the commencement of the term of this Agreement until December
31, 2000, Employee shall be paid gross base salary at the same rate that he was
being paid immediately prior to the termination of the Employment Agreement
between Employee and Employer dated November 27, 1996;
(2) From January 1, 2001 until the date of termination of this
Agreement, Employee shall be paid a gross base salary of Two Hundred Thousand
Dollars ($200,000.00) per year.
b. Guaranteed Bonus. The only bonus to which Employee is entitled
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or will be paid is the Guaranteed Bonus referred to in Section 3a of the
Agreement To Modify Employment and General Release of All Claims, executed
concurrently herewith.
c. Benefits. During the term of his employment, in addition to the
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Guaranteed Bonus and Base salary referred to above, Employee shall be entitled
to whatever employee benefits, if any, Employer elects to make available to its
employees, provided that Employee meets all qualifications and eligibility
requirements for employee benefits which Employer may periodically establish and
which apply generally to Employer's employees. Employer shall have no obligation
under this Agreement to provide any employee benefit to Employee that Employer
elects to discontinue or that Employer does not make generally available to its
employees or on terms more favorable than those generally applicable to
Employer's employees as periodically modified by Employer. Further, during the
term of this Agreement, Employee shall receive an automobile allowance in the
sum of Two Hundred Fifty Dollars ($250.00) per month.
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d. Continuing Education. During the term of this Agreement, the
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Company will reimburse employee for continuing legal education expenses. Such
expenses shall not include any expense for transportation, lodging or meals and
shall be limited only to actual registration expenses not to exceed $50.00 per
accredited hour of continuing legal education, up to a maximum of $1000.00.
4. PRIOR EMPLOYMENT AGREEMENT TERMINATED.
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Employee acknowledges and agrees that the Employment Agreement between
he and the Company dated November 27, 1996, has been terminated and has no
further force or effect.
5. TERM AND TERMINATION OF EMPLOYMENT.
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a. Term. Employee's employment shall expire on December 31, 2001,
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unless sooner terminated by mutual agreement or pursuant to the provisions of
this section 5, hereinbelow.
b. Termination for Cause. Employer may terminate this Agreement at any
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time without notice for cause. Cause of termination will be deemed to exist
under the following circumstances: Employee commits any material acts of
dishonesty; discloses confidential information; is guilty of carelessness or
misconduct; neglects his duties under this Agreement; fails to follow the
specific instructions of Employer; fails to or is incapable of discharging his
duties; acts in any way that has a direct, substantial and adverse effect on
Employer's reputation; or other good cause exists for termination.
c. Compensation Upon Termination. Upon the termination of Employee's
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employment, Employer shall only be obligated for compensation earned by the
Employee through the date of termination. Thereafter, all employee benefits
shall terminate.
6. EMPLOYEE'S DUTY UPON TERMINATION. Upon the termination of employment
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hereunder, Employee shall forthwith deliver up to Employer all lists of
customers, correspondence, accounts, records and "confidential information" as
defined hereinbelow and any other documents or property made or held by him or
under his control in relation to the business or affairs of Employer or any
subsidiary or affiliate thereof, and no copy of any such confidential
information or lists, correspondence, accounts, records, documents or property
shall be retained by him or given to any third party.
7. UNFAIR ADVANTAGE.
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a. Confidentiality. In order that Employer shall receive and be able to
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maintain the benefit of the goodwill, trade secrets and confidential information
that Employer enjoys in connection with its business, and recognizing that the
covenants hereinafter set forth are not severable from such goodwill, and that
trade secrets and confidential information are granted to Employer in order to
protect the same, and in order to otherwise protect Employer's legitimate
business interests, Employee agrees, during the term of this Agreement and upon
termination of his employment with Employer and for the periods indicated below,
that:
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(1) During the course of employment with Employer, Employee will have
access to and gain knowledge of certain trade secrets and confidential
information relative to the business affairs of Employer. For the purposes of
the Agreement, "confidential information" shall mean any information relating to
the business of Employer or any affiliate of Employer that has not previously
been publicly released by duly authorized representatives of Employer and shall
include, but shall not be limited to, Employer information or information of any
affiliate of Employer encompassed in all drawings, reports, designs, plans,
proposals, marketing and sales plans, training techniques, financial data, cost
and pricing information, customer information including customer lists and
files, and all methods, concepts or ideas in or reasonably related to the
business of Employer or affiliates of Employer. Employee therefore acknowledges
and agrees that:
(2) Confidential information is both confidential and a trade secret,
is not readily accessible to competitors of Employer, and shall be used by
Employee for the sole benefit of Employer.
(3) The confidential information has been compiled through and by use
of Employer's ingenuity, time, marketing and product development strategies,
pricing, policies, labor, expense, investigation and long experience rendering
the confidential information a valuable asset of Employer, owned solely by
Employer, and is part of its goodwill.
(4) Actual use or divulging to others for their use of the confidential
information in violation of the terms of this Agreement would be unfair use, to
the Employer's extreme prejudice.
(5) Employee agrees to regard and preserve as confidential all
confidential information pertaining to the business of Employer or any affiliate
of Employer that has been or may be obtained by the Employee in the course of
his employment with Employer, whether he has such information in his memory or
in writing or in other physical form. Employee will not, without written
authority from Employer, use for his benefit or purposes, nor disclose to
others, either during the term of his employment or thereafter, except as
required by the conditions of his employment, any information concerning the
business of Employer or any affiliate of Employer.
(6) Employee agrees not to remove from the premises of Employer, except
as an Employee in the pursuit of the business of Employer or any of its
affiliates, or except as specifically permitted in writing by Employer, any
equipment or document containing or reflecting any confidential information of
Employer or any affiliate of Employer.
b. Solicitation of Company Employees. Employee recognizes and agrees
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that upon termination of employment with Employer, regardless of the reason,
cause or occasion for such termination, Employee will not either directly or
indirectly for a period of three (3) years next following the date of
termination (or if this period shall be unenforceable by law, then for such
periods as shall be enforceable) employ or seek to employ any person who is
employed by Employer, nor shall he induce any such person to leave employment
with Employer.
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c. Business Opportunities. Employee agrees that during his employment
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hereunder he will not take any action that might divert from Employer
or any subsidiary or affiliate of Employer an opportunity that would be within
the scope of any of the present or future business thereof.
d. Breach. In the event of a breach or threatened breach of this
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section 7, Employer shall be entitled to an injunction restraining such breach;
but nothing herein shall be construed as prohibiting Employer from any other
remedy as may be provided by law or in equity, together with such real and
punitive damages as may be available. The remedies herein shall be cumulative
one of the other and not exclusive; with the right of Employer to pursue such
rights, remedies and privileges as it desires and in such order as it might
elect.
8. ASSIGNABILITY AND BINDING EFFECT. This Agreement shall inure to the
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benefit of and be binding upon Employer and Employee and their successors and
assigns. The obligations of Employee may not be delegated, and Employee may not
assign, transfer, pledge, encumber, hypothecate or otherwise dispose of any of
his rights hereunder without the prior written consent of Employer, and any such
attempted delegation or disposition shall be null and void and without effect
and shall relieve Employer of any and all liability hereunder.
9. MERGER OR CONSOLIDATION. In the event of the merger or consolidation
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of Employer with any corporation or corporations, or of the sale by Employer of
a major portion of its assets or of its business and goodwill, this Agreement
may be assigned and transferred to such successor in interest as an asset of
Employer upon such assignee assuming Employer's obligations hereunder.
10. NO CONFLICTING AGREEMENTS. Employee represents and warrants that he
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is not a party to any agreement, contract or understanding, whether of
employment or otherwise, that would in any way restrict or prohibit him from
undertaking or performing employment in accordance with the terms and conditions
of this Agreement.
11. GOVERNING LAW. This Agreement shall be subject to and governed by
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the laws of California. Venue of any action arising from or related to this
Agreement shall be in Los Angeles County, California.
12. ENTIRE AGREEMENT.
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a. This Agreement constitutes the entire agreement between the parties
and contains all of the agreements between the parties with respect to the
subject matter hereof and supersedes any and all other agreements, either oral
or in writing, between the parties hereto with respect to the subject matter
hereof.
b. No change or modification of this Agreement shall be valid unless
the same shall be in writing and signed by Employee and Employer. No waiver of
any provision of this Agreement shall be valid unless in writing and signed by
the party or person to be charged.
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13. SEVERABILITY. In case any one or more of the provisions of this
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Agreement shall be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected thereby.
14. SECTION HEADINGS. The section headings contained in this Agreement
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are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
15. NOTICES. Any and all notices required or permitted to be sent
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hereunder shall be personally delivered or sent by certified or registered
mail, return receipt requested, with postage prepaid, to the addresses as
follows:
If to Employer: Unico American Corporation
00000 Xxxxxxxxxx Xxxxx
Xxxxxxxx Xxxxx, XX 00000-0000
Attn.: Xxxx X. Cheldin, Executive Vice President
If to Employee: Xxxxx Xxxxxxx
X.X. Xxx 0000
Xxxxxxxxx, XX 00000
Any party may, upon written notice to the other, change its address for receipt
of notices.
16. INJUNCTIVE RELIEF. It is understood and agreed by and between the
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parties hereto that the services to be rendered by the Employee hereunder, and
the rights and privileges granted to the Employer by the Employee hereunder, are
of a special, unique, extraordinary and intellectual character, which gives them
a peculiar value, the loss of which cannot be reasonably or adequately
compensated in damages in any action at law, and that a breach of this Agreement
will cause Employer great irreparable injury and damage. The Employee hereby
expressly agrees that Employer shall be entitled to the remedies of injunction,
specific performance and other equitable relief to prevent a breach of the
Agreement by the Employee. This provision shall not, however, be construed as a
waiver of any of the rights that Employer may have for damages or otherwise.
17. ARBITRATION.
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a. Arbitrable Claims. To the fullest extent permitted by law, all
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disputes between Employee (and his attorneys, successors, and assigns) and
Company (and its Affiliates, shareholders, directors, officers, employees,
agents, successors, attorneys, and assigns) relating in any manner whatsoever to
the employment or termination of Employee, including, without limitation, all
disputes arising under this Agreement, ("Arbitrable Claims") shall be resolved
by arbitration. All persons and entities specified in the preceding sentence
(other than Company and Employee) shall be considered third-party beneficiaries
of the rights and obligations created by this Section on Arbitration. Arbitrable
Claims shall include, but are not limited to, contract
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(express or implied) and tort claims of all kinds, as well as all claims
based on any federal, state, or local law, statute, or regulation, excepting
only claims under applicable workers' compensation law and unemployment
insurance claims. By way of example and not in limitation of the foregoing,
Arbitrable Claims shall include (to the fullest extent permitted by law) any
claims arising under Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act, the Americans with Disabilities Act, and the
California Fair Employment and Housing Act, as well as any claims asserting
wrongful termination, harassment, breach of contract, breach of the covenant of
good faith and fair dealing, negligent or intentional infliction of emotional
distress, negligent or intentional misrepresentation, negligent or intentional
interference with contract or prospective economic advantage, defamation,
invasion of privacy, and claims related to disability.
b. Procedure. Arbitration of Arbitrable Claims shall be in
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accordance with the National Rules for the Resolution of Employment Disputes of
the American Arbitration Association, in effect as of the date of this Agreement
or as amended subsequently thereto ("AAA Employment Rules"), as augmented in
this Agreement. Arbitration shall be initiated as provided by the AAA Employment
Rules, although the written notice to the other party initiating arbitration
shall also include a statement of the claim(s) asserted and the facts upon which
the claim(s) are based. Arbitration shall be final and binding upon the parties
and shall be the exclusive remedy for all Arbitrable Claims. Either party may
bring an action in court to compel arbitration under this Agreement and to
enforce an arbitration award. Otherwise, neither party shall initiate nor
prosecute any lawsuit or administrative action in any way related to any
Arbitrable Claim. All arbitration hearings under this Agreement shall be
conducted in Los Angeles County, California. The interpretation and enforcement
of this agreement to arbitrate shall be governed by the California Arbitration
Act. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN
REGARD TO ARBITRABLE CLAIMS, INCLUDING WITHOUT LIMITATION ANY RIGHT TO TRIAL BY
JURY AS TO THE MAKING, EXISTENCE, VALIDITY, OR ENFORCEABILITY OF THE AGREEMENT
TO ARBITRATE.
c. Arbitrator Selection. All disputes involving Arbitrable Claims
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shall be decided by a single arbitrator. The arbitrator shall be selected by
mutual agreement of the parties within thirty (30) days of the effective date of
the notice initiating the arbitration. If the parties cannot agree on an
arbitrator, then the complaining party shall notify the AAA and request
selection of an arbitrator in accordance with the AAA Employment Rules.
d. Authority Of Arbitrator, Discovery And Arbitration Fees. The
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arbitrator shall have exclusive authority to resolve all Arbitrable Claims,
including, but not limited to, any claim that all or any part of this Agreement
is void or unenforceable. Parties to arbitration proceedings under this
Agreement shall have the right to conduct discovery utilizing all discovery
procedures available in civil actions brought in the Superior Court of
California. The arbitrator shall have authority to enforce all rights, remedies,
procedures, duties, liabilities and obligations arising under said discovery
procedures and to impose all sanctions and penalties as can be imposed in like
circumstances in a civil action brought in the Superior Court of California. The
arbitrator shall issue a written decision and shall have authority to award
equitable relief, money damages,
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costs, and reasonable attorney's fees to the greatest extent permitted by law,
including, but not limited to, any remedy or relief available in a civil action.
The fees of the arbitrator and all expenses of the arbitration shall be paid by
Company. Each party shall pay his/its own attorney's fees unless otherwise
provided by law.
18. ATTORNEYS' FEES. Should any litigation be commenced between the
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parties hereto or their personal representatives to enforce any provision of
this Agreement or the rights and duties of any person in relation thereto,
including the right to arbitrate, the prevailing party in such litigation shall
be entitled, in addition to such other relief as may be granted, to a reasonable
sum as and for their or his attorneys' fees in such litigation or in a separate
action brought for that purpose.
19. EMPLOYEE ACKNOWLEDGMENT. Employee hereby acknowledges that he
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has read this Agreement and understands the provisions contained herein.
Employee further acknowledges that he has been advised to seek independent legal
and tax advice with regard to the matters set forth herein.
20. REVOCATION. Concurrently with the execution of this Agreement,
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Employee and Company have executed an Agreement to Modify Employment and General
Release of All Claims ("Release"). Paragraph 6(g) of the Release provides that
Employee "shall have a period of seven (7) days following the execution of this
[Release] to revoke this [Release] and it shall not become effective or
enforceable until the revocation period has expired." In the event that Employee
revokes the Release within the seven (7) day period referred to therein, this
New Employment Agreement shall be deemed to have been concurrently revoked.
DATED: December 21, 2000 \s\Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx, Employee
UNICO AMERICAN CORPORATION
By: /s/ Xxxxx Cheldin
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Xxxxx Cheldin, President
Employer
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