EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), is entered into as of the 16th
day of December, 1998, by and among RETROSPETTIVA, INC., a California
corporation (the "Company") and XXXXX XXXXXXX ("Xxxxxxx").
WHEREAS, the Company desires to employ Xxxxxxx as provided herein; and,
WHEREAS, Xxxxxxx desires to accept such employment,
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. EMPLOYMENT. The Company hereby employs Xxxxxxx and Xxxxxxx hereby
accepts employment with the Company as its Vice President - Investor
Relations upon the terms and conditions hereinafter set forth.
2. DUTIES. Xxxxxxx will serve the Company as its Vice President -
Investor Relations and will faithfully and diligently perform the services
and functions relating to such office and position or otherwise reasonably
incident to such office and position, provided that all such services and
functions will be reasonable and within Xxxxxxx'x area of expertise.
Xxxxxxx'x specific duties shall include those related to (i) all phases of
investment banking and investor relations between the Company and the
brokerage community and market makers, (ii) enhance the name recognition of
the Company, (iii) increase investor/broker and industry awareness of the
Company, (iv) further the value of the Company and its securities and (v)
such other duties as the Company may reasonably direct. Xxxxxxx will, during
the term of this Agreement (or any extension thereof), devote his time,
attention and skills and best efforts as a full time employee to the
promotion of the business of the Company.
3. TERM. This Agreement and Xxxxxxx'x employment shall commence on
December 16, 1998 (the "Effective Date") and shall continue for a term of one
(1) year ("Initial Term") unless terminated earlier in accordance with this
Agreement. The term of this Agreement may be extended by agreement of the
Company and Xxxxxxx.
4. COMPENSATION. As compensation for the services rendered to the
Company under this Agreement commencing on the Effective Date hereof, Xxxxxxx
will be paid a base salary of One Thousand dollars ($1,000) per month which
will increase to Four Thousand Five Hundred dollars ($4,500) per month
commencing March 1, 1999, with all base salary payable in accordance with the
then current payroll policies of the Company or as otherwise agreed to by the
parties (the "Salary"). At any time and from time to time, the Salary may be
increased if so determined by the board of directors of the Company after a
review of Xxxxxxx'x performance of his duties hereunder.
5. TERMINATION. This Agreement will terminate upon the occurrence of any
of the following events:
a. The death of Xxxxxxx;
b. The "Total Disability" (as hereinafter defined) of Xxxxxxx;
c. Written notice to Xxxxxxx from the Company of termination for "Cause"
(as hereinafter defined);
d. The voluntary termination of this Agreement by Xxxxxxx upon thirty
(30) days prior written notice;
e. The later of one (1) year from the Effective Date of this Agreement
or the date to which this Agreement is extended in accordance with
Section 3 above; or
f. Written notice to Xxxxxxx from the Company for any reason without
"Cause".
For purposes of Section 5(b), the term "Total Disability" means physical
or mental disability, or both, determined to be (or reasonably expected to
be, based upon then available medical information) of not less than twelve
(12) months duration or more. The determination shall rest upon the opinion of
the physician regularly attending Xxxxxxx. If the Company disagrees with said
physician's opinion, the Company may engage at their own expense a physician
to examine the Xxxxxxx, and Xxxxxxx hereby consents to such examination and
to waive, if applicable any privilege between the physician and Xxxxxxx that
may arise as a result of said examination. If after conferring, the two
physicians cannot concur on a final opinion, they shall choose a third
consulting physician whose opinion shall control. The expense of the third
consulting physician shall be borne equally by the Xxxxxxx and the Company.
For purposes of Section 5(c), "Cause" means (i) Xxxxxxx has failed to
substantially perform his duties as reasonably determined by the chief
executive officer of the Company or the Board of Directors of the Company,
(ii) Xxxxxxx engages in poor performance that is not cured within thirty (30)
days after counseling by the Company, (iii) Xxxxxxx has failed to comply with
the reasonable directives and policies of the Board of Directors of the
Company or of the chief executive officer of the Company, or (iv) Xxxxxxx
breaches his fiduciary duty to the Company or commits any dishonest,
unethical, fraudulent, or felonious act in respect to Xxxxxxx'x duties to the
Company.
6. STOCK OPTIONS. Specifically subject to Section 6a and 6b below and
contingent upon Xxxxxxx being employed by the Company, Xxxxxxx shall be
granted options to purchase a total of 600,000 shares of the Company's common
stock exercisable at $2.50 per share (the "Stock Options") pursuant to and to
be vested and exercisable in accordance with the terms of the Company's 1996
Stock Option Plan, as amended, and in accordance with the following:
a. Upon execution of this Agreement, 85,000 Stock Options shall vest
and be exercisable immediately (the "Initial Stock Options").
2
x. Xxxxxxx'x Stock Options for an additional 515,000 shares of the
Company's Common Stock shall be granted, vest and shall be
exercisable upon the finalization and corporate approval of an
amendment to the Company's 1996 Stock Option Plan increasing the
number of shares of subject to the plan, except that the
additional 515,000 options shall vest at the rate of 42,916
shares for each month that Xxxxxxx is employed by the Company for
the twelve (12) month period from the March 1, 1999. If Xxxxxxx'x
employment by the Company is terminated for any reason, then all
options granted to Xxxxxxx shall immediately terminate and not be
exercisable upon notice of the termination of Xxxxxxx'x
employment.
It is acknowledged that the shares of the Company's Common Stock
underlying the Initial Stock Option are registered and the Company agrees to
register the remaining 515,000 Stock Options and the underlying shares on
Form S-8 as soon as reasonably practicable after their grant and upon
approval by the Board of Directors.
7. BENEFITS. Xxxxxxx shall not be entitled to receive any benefits
provided by the Company to other employees except for benefits specifically
agreed to in writing and attached hereto.
8. EXPENSES. Xxxxxxx is authorized to incur reasonable expenses for
promoting the business of the Company, including expenses for entertainment,
travel and similar items so long as such expenses are pre-approved in
writing. The Company shall reimburse Xxxxxxx for all such expenses on the
presentation by Xxxxxxx of itemized accounts of such expenditures in
accordance with guidelines set forth by the Internal Revenue Service.
9. NON-COMPETITION AND CONFIDENTIALITY.
a. The Company and Xxxxxxx acknowledge and agree that Xxxxxxx'x
services are of a special and unusual character which have a
unique value to the Company, the loss of which cannot be
adequately compensated by damages in an action at law and if used
in completion with the Company, could cause serious harm to the
Company. Accordingly, Xxxxxxx agrees that during the term of this
Agreement and for a period of two (2) years after the termination
of his employment by the Company, irrespective of the reason for
such termination, Xxxxxxx will not (1) enter into any agreement
with or directly or indirectly solicit or attempt to solicit
Xxxxxxx or other representatives of the Company (the "Company")
for the purpose of causing them to leave the Company to take
employment with any other business entity, or (2) compete,
directly or indirectly, with the Company in any way and that
Xxxxxxx will not act as an officer, director, employee,
consultant, shareholder, lender or agent of any entity engaged in
any business of the same nature as, or in competition with, the
business in which the Company is now engaged except for the
ownership of less than five percent.
3
(5%) of the outstanding capital stock of a publicly traded
clothing manufacturing and/or marketing company.
b. For purposes of Section 9, restrictions regarding competition by
Xxxxxxx shall only apply to competing businesses or entities that
operate in the continental United States.
c. In the event of the breach of the covenants contained in this
Section 9, it is understood that damages will be difficult to
ascertain and the Company may petition a court of law or entity
for injunctive relief in addition to any other relief which the
Company many have under the law, this Agreement or any other
agreement executed in connection herewith. In connection with the
bringing of any legal or equitable action for the enforcement of
this Agreement, the Company shall be entitled to recover, whether
the Company seeks equitable relief, and regardless of what relief
is afforded, such reasonable attorneys' fees and expenses as
the Company may incur in prosecution of the Company's claim for
breach hereof.
d. It is hereby agreed that the provisions of this Section 9 are
separate and independent from the other provisions of this
Agreement, that these provisions are specifically enforceable by
the Company notwithstanding any claim by Xxxxxxx that the
Company has violated or breached this Agreement or any claim that
Xxxxxxx is entitled to any offset or compensation.
e. To induce the Company to enter into this Agreement, Xxxxxxx
represents and warrants to the Company that Section 9 of this
Agreement is enforceable by the Company in accordance with its
terms.
10. WAIVER OF BREACH. The waiver by any party hereto of a breach of any
provision of this Agreement will not operate or be construed as a waiver of
any subsequent breach by any party.
11. NOTICES. Any notices, consents, demands, request, approvals and
other communications to be given under this Agreement by either party to the
other will be deemed to have been duly given if given in writing and
personally delivered, faxed or if sent by mail, registered or certified,
postage prepaid with return receipt requested, as follows:
If to the Company: Retrospettiva, Inc.
0000 Xxxx Xxxxxxx Xxxx.
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxxx Xxxxxx
4
If to Xxxxxxx: Xxxxx Xxxxxxx
00000 Xxxxxx Xxxxx
Xxxx Xxxxx, XX 00000
Notices delivered personally will be deemed communicated as of actual
receipt, notices by fax shall be deemed delivered when such notices are faxed
to recipient's fax number and notices by mail shall be deemed delivered when
mailed.
12. ENTIRE AGREEMENT. This Agreement and the agreements contemplated
hereby constitute the entire agreement of the parties regarding the subject
matter hereof, and supersede all prior agreements and understanding, both
written and oral, among the parties, or any of them, with respect to the
subject matter hereof.
13. SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under present or future laws effective
during this Agreement, such provision will be fully severable and this
Agreement will be construed and enforced as if such illegal, invalid or
unenforceable provision never comprised a part hereof; and the remaining
provisions hereof will remain in full force and effect and will not be
affected by the illegal, invalid or unenforceable provision or by its
severance herefrom. Furthermore, in lieu of such illegal, invalid or
unenforceable provision, there will be added automatically, as part of this
Agreement, a provision as similar in its terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid and
enforceable.
14. GOVERNING LAW. To the extent permitted by applicable law, this
Agreement and the rights and obligations of the parties will be governed by
and construed and enforced exclusively in accordance with the substantive
laws (but not the rules governing conflicts of laws) of the State of
California and the State of California shall have exclusive jurisdiction
regarding any legal actions relating to this Agreement.
15. CAPTIONS. The captions in this Agreement are for convenience of
reference only and will not limit or otherwise affect any of the terms or
provisions hereof.
16. GENDER AND NUMBER. When the context requires, the gender of all
words used herein will include the masculine, feminine and neuter, and the
number of all words will include the singular and plural.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which will
constitute one and the same instrument.
5
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
THE COMPANY:
RETROSPETTIVA, INC., a California corporation
By: /s/ Xxxxxxxx Xxxxxxxxxxx
------------------------------------------
boro, Chief Executive Officer
XXXXXXX:
/s/ Xxxxx Xxxxxxx
---------------------------------------------
Xxxxx Xxxxxxx
6
