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EXHIBIT 10.105
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of January 1, 1998 (the "Agreement")
by and between Wilshire Technologies, Inc., a California corporation (the
"Company") and Xxxx Xxx Xxxxxx, an individual residing at La Jolla, California
("Executive").
The Company and Executive desire to set forth the terms and
conditions on which (i) the Company shall employ Executive as President and
Chief Executive Officer (ii) Executive shall render services to the Company, and
(iii) the Company shall compensate Executive for such services.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements hereinafter set forth, the parties hereto hereby agree
as follows:
1. Employment.
The Company hereby employs Executive and Executive hereby accepts
such employment to perform executive services as hereinafter provided for the
period from January 1, 1998 through December 31, 1998. Commencing January 1,
1999, the period of employment shall be automatically extended from year to year
for additional periods of one year each unless the Company or Executive at least
three months prior to the time the Agreement would otherwise have expired shall
give the other party written notice of intention not to extend the employment.
The original one-year period of this Agreement and any extensions thereof are
hereinafter referred to as the "Term".
2. Duties and Responsibilities.
2.1 During the Term Executive shall devote his full attention and
expend his best efforts, energies, and skills, on a full-time basis, to the
business of the Company and any corporation controlled by the Company (each a
"Subsidiary"). For purposes of this Agreement, the term the "Company" shall mean
the Company and all Subsidiaries.
2.2 During the Term Executive shall serve as the President and Chief
Executive Officer of the Company. In the performance of his responsibilities
hereunder, Executive shall be subject to all of the Company's policies, rules
and regulations applicable to its executives of comparable status, shall report
directly to the Board of Directors of the Company (the "Board") and shall be
subject to the direction and control of the Board.
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Executive's services shall be rendered principally in or from an
office located in the Carlsbad, California, area. Nevertheless, Executive agrees
to make such trips out of the area, for limited periods, as are reasonably
incident to the performance of his duties.
2.3 Without first obtaining the written permission of the Board in
each instance, Executive will not authorize or permit the Company to engage the
services of, or engage in any business activity with, or provide any financial
or other benefit to, any affiliate of Executive. The phrase "affiliate of
Executive" as used in this Section shall mean and include Executive's family by
blood or marriage (including, without limitation, parents, spouse, siblings,
children and in-laws), and any business or business entity which is directly or
indirectly owned or controlled by Executive or any member of Executive's family
or in which Executive or any member of Executive's family has any direct or
indirect financial interest whatsoever, but shall not include Trilon Dominion
Partners, L.L.C.
2.4 In order to induce the Company to enter into this Agreement,
Executive represents and warrants to the Company that (a) Executive is not a
party or subject to any employment agreement or arrangement with any other
person, firm, company, corporation or other business entity, except Century
Power Corporation (b) Executive is subject to no restraint, limitation or
restriction by virtue of any agreement or arrangement, or by virtue of any law
or otherwise which would impair Executive's right or ability to remain in the
employ of the Company, or to perform fully his duties and obligations pursuant
to this Agreement, and (c) to the best of Executive's knowledge, no material
litigation is pending or threatened against any business or business entity
owned or controlled or formerly owned or controlled by Executive.
3. Compensation.
3.1 During the Term the Company shall pay Executive a salary at an
annual rate of $175,000, subject to review after six months, payable in
installments in accordance with the Company's regular practice, but not less
often than monthly.
3.2 Executive shall be entitled to reasonable periods of paid sick
leave, four weeks paid vacation per year and holidays in accordance with the
Company's regular policy.
3.3. Executive is authorized to incur reasonable expenses in the
performance of his duties hereunder. The Company shall reimburse Executive for
such expenses upon the presentation by Executive, not less frequently than
monthly, of signed, itemized accounts of such expenditures and vouchers, all in
accordance with the Company's procedures and policies as adopted and in effect
from time to time and applicable to its executives of comparable status.
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3.4 The Company shall provide Executive, at the Company's expense,
participation in group medical, dental, accident, disability and life insurance
plans of the Company and other standard benefits as may be provided by the
Company from time to time to its executives of comparable status, subject to,
and to the extent that, Executive is eligible under such benefit plans in
accordance with their respective terms. Executive and Company hereby agree that
Executive shall not participate in the Company's group medical and group dental
insurance plan during 1998.
4. Termination.
4.1 The Company may terminate Executive's employment under this
Agreement at any time for Cause. "Cause" shall exist for such termination if
Executive (i) is adjudicated guilty of illegal activities by a court of
competent jurisdiction, (ii) commits any act of fraud or intentional
misrepresentation, (iii) has, in the reasonable judgment of the Board, engaged
in serious misconduct, which misconduct has or would, if generally known,
materially adversely affect the good will or reputation of the Company and which
misconduct Executive has not cured or altered to the satisfaction of the Board
within ten days following notice by the Board to Executive regarding such
misconduct, (iv) refused to follow any lawful directive of the Board to
Executive concerning material aspect of the Company's business, (v) has made any
misrepresentation to the Company under Section 2.4 hereof, or (vi) has been
incapable to perform his duties under this Agreement for at least three
consecutive months.
4.2 The Company may terminate Executive's employment under this
Agreement at any time without Cause.
4.3 If the Company terminates Executive's employment pursuant to the
provisions of Section 4.2 hereof, or if the Company does not agree to extend
Executive's employment pursuant to the provisions of Paragraph 1 hereof,
Executive shall receive as his severance an amount equal to six months of
Executive's then salary, payable in six equal monthly installments. The first
payment shall be made on Executive's regular pay day immediately following the
date of termination.
4.4 If Executive does not agree to extend his employment pursuant to
the provisions of Paragraph 1 hereof, Executive shall receive no severance pay.
4.5 Death of Executive. In the event Executive shall die at any time
during the Term, this Agreement shall terminate. In such event the estate of
Executive shall forthwith receive any salary accrued or unpaid to the date of
his death.
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5. Restrictive Covenants.
5.1 Executive acknowledges that (i) he has a major responsibility
for the administration, development and growth of the Company's business, (ii)
his work for the Company will bring him into close contact with confidential
information of the Company and its customers, and (iii) the agreements and
covenants contained in this Section 5 are essential to protect the business
interests of the Company and that the Company will not enter into this Agreement
but for such agreements and covenants. Accordingly, Executive covenants and
agrees as follows:
5.1.a Except as otherwise provided for in this Agreement, during the
Term Executive shall not, directly or indirectly, within any state, province or
other political subdivision of the United States or any other country in which
the Company is conducting business, compete with respect to any services or
products of the Company which are either offered or are being developed by the
Company (the "Company's Business"), or, without limiting the generality of the
foregoing, be or become, or agree to be or become, interested in or associated
with, in any capacity (whether as partner, shareholder, owner, officer,
director, employee, principal, agent, creditor, trustee, consultant, co-venturer
or otherwise), any individual, corporation, firm, association, partnership,
joint venture or other business entity, which competes with the Company's
Business; provided, however, that Executive may own, solely as an investment,
not more than one (1%) percent of any class of securities of any publicly owned
corporation.
5.1.b During, and for one year after, the Term, Executive shall not,
directly or indirectly, (i) induce or attempt to influence any employee of the
Company to leave its employ, (ii) aid or agree to aid any competitor, customer
or suppliers of the Company in any attempt to hire any person who shall have
been employed by the Company within the one year period preceding such requested
aid, or (iii) induce or attempt to influence any person or business entity who
was a customer or supplier of the Company during any portion of said period to
transact business with a competitor of the Company.
5.1.c During the Term and thereafter, Executive shall not disclose
to anyone any information about the affairs of the Company, including, without
limitation, trade secrets, trade "know-how", inventions, customer lists,
business plans, operational methods, pricing policies, marketing plans, sales
plans, identity of suppliers or customers, sales, profits or other financial
information, which is confidential to the Company or is not generally known in
the relevant trade, nor shall Executive make use of any such information for his
own benefit.
5.2 Executive acknowledges and agrees that in the event of a
violation or threatened violation of any of the provisions of Section 5.1 (the
"Restrictive Covenants") the Company shall have no adequate remedy at law and
shall therefore be entitled to enforce each such provision by temporary or
permanent injunctive or mandatory relief obtained in any court of competent
jurisdiction without the necessity of
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proving damages or posting any bond or other security, and without prejudice to
any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is
held to be invalid or unenforceable, the same shall not affect the remainder of
the covenant or covenants, which shall be given full effect, without regard to
the invalid or unenforceable portions. Without limiting the generality of the
foregoing, if any of the Restrictive Covenants, or any part thereof, is held to
be unenforceable because of the duration of such provision or the area covered
thereby, the parties hereto agree that the court making such determination shall
have the power to reduce the duration and/or scope and/or area of such provision
and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to
enforce the Restrictive Covenants upon the courts of any jurisdiction within the
geographical scope of such Restrictive Covenants. In the event that the courts
of any one or more of such jurisdictions shall hold such Restrictive Covenants
wholly unenforceable by reason of the breadth of such scope or otherwise, it is
the intention of the parties hereto that such determination not bar or in any
way affect the Company's right to the relief provided above in the courts of any
other jurisdictions, within the geographical scope of such Restrictive
Covenants, as to breaches of such covenants in such other respective
jurisdictions, the above covenants as they relate to each jurisdiction being,
for this purpose, severable into diverse and independent covenants.
6. Insurance.
6.1 The Company may, from time to time, apply for and take out, in
its own name and at its own expense, life, health, accident, disability or other
insurance upon Executive in any sum or sums that it may deem necessary to
protect its interests, and Executive agrees to aid and cooperate in all
reasonable respects with the Company in procuring any and all such insurance,
including without limitation, submitting to the usual and customary medical
examinations, and by filling out, executing and delivering such applications and
other instruments in writing as may be reasonably required by an insurance
company or companies to which an application or applications for such insurance
may be made by or for the Company. In order to induce the Company to enter into
this Agreement, Executive represents and warrants to the Company that to the
best of his knowledge Executive is insurable at standard (non-rated) premiums.
6.2 Executive shall be insured under the Company's Officers' and
Directors' liability insurance policy, if any.
7. Miscellaneous.
7.1 This Agreement is a personal contract, and the rights and
interests of Executive hereunder may not be sold, transferred, assigned, pledged
or hypothecated except as otherwise expressly permitted by the provisions of
this Agreement. Executive
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shall not under any circumstances have any option or right to require payment
hereunder otherwise than in accordance with the terms hereof. Except as
otherwise expressly provided herein, Executive shall not have any power of
anticipation, alienation or assignment of payments contemplated hereunder, and
all rights and benefits of Executive shall be for the sole personal benefit of
Executive, and no other person shall acquire any right, title or interest
hereunder by reason of any sale, assignment, transfer, claim or judgment or
bankruptcy proceedings against Executive, provided, however, that in the event
of Executive's death, Executive's estate, legal representatives or beneficiaries
(as the case may be) shall have the right to receive all of the benefits that
accrued to Executive pursuant to, and in accordance with, the terms of this
Agreement.
7.2 The Company shall have the right to assign this Agreement to any
successor of substantially all of its business or assets which assumes the
Company's obligations hereunder.
7.3 Any notice required or permitted to be given pursuant to this
Agreement shall be in writing and shall be delivered personally, sent by
facsimile transmission, receipt requested, by nationally recognized overnight
courier for next business day delivery, or sent by registered or certified mail,
return receipt requested, postage prepaid, addressed to such party at the
address set forth below, or at such other addresses as such party shall
designate by notice to the other in the manner provided herein for giving
notice.
If to the Company: Wilshire Technologies, Inc.
0000 Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
If to the Executive: Xxxx Xxx Xxxxxx
8574 Xxxxx Xx Xxxxx Xxxxx
Xxx. 000
Xx Xxxxx, Xxxxxxxxxx 00000
7.4 This Agreement may not be changed, amended, terminated or
superseded except by an agreement in writing, nor may any of the provisions
hereof be waived except by an instrument in writing, in any such case signed by
the party against whom enforcement of any change, amendment, termination,
waiver, modification, extension or discharge is sought.
7.5 Except as otherwise provided herein, this Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of California, without giving any effect to the principles of conflicts of laws.
7.6 All descriptive headings of the several sections of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
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7.7 If any provision of this Agreement, or part thereof, is held to
be unenforceable, the remainder of this Agreement or provision, as the case may
be, shall nevertheless remain in full force and effect.
7.8 Each of the parties hereto shall at any time and from time to
time hereafter, upon the reasonable request of the other, take such further
action and execute, acknowledge and deliver all such instruments of further
assurance as may be necessary to carry out the provisions of this Agreement.
7.9 This Agreement contains the entire agreement and understanding
between the Company and Executive with respect to the subject matter hereof. No
representations or warranties of any kind or nature relating to the Company or
its affiliates or their respective businesses, assets, liabilities, operations,
future plans or prospects have been made by or on behalf of Company to
Executive; nor have any representations or warranties of any kind or nature been
made by Executive to the Company, except as expressly set forth in this
Agreement.
8. Authorization by Board of Directors.
The execution and delivery of this Agreement by and on behalf of the
Company has been authorized by the Company's Board of Directors at a meeting
duly held on November 21, 1997.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date hereinabove written.
WILSHIRE TECHNOLOGIES, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Title: Chief Financial Officer
EXECUTIVE
/s/ Xxxx Xxx Xxxxxx
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Xxxx Xxx Xxxxxx
COMPENSATION COMMITTEE OF THE
BOARD OF DIRECTORS
/s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
