EXHIBIT "E"
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made, entered into, and
effective as of January 31, 1998 ("Effective Date"), by and between American
Custom Components, Inc., a Nevada corporation ("the "Company") and Xxxxx Xxxxx
("Employee").
RECITALS
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WHEREAS, COMPANY desires to benefit from Employee's expertise and
employ Employee and Employee is willing to accept such employment.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, the parties hereto hereby agree as follows:
AGREEMENT
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1. TERM AND DUTIES.
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The Company hereby employs Employee as a Tooling Manager as of the
Effective Date for a period of three (3) years, at which time this Agreement
shall terminate unless extended by mutual agreement of the parties. Employee
shall faithfully and diligently perform all professional duties and acts as may
be reasonably requested of Employee by the Company or its officers consistent
with the function of a Tooling Manager in this or a similar company.
2. DUTIES.
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Employee agrees to perform Employee's services to the best of
Employee's ability. Employee agrees throughout the term of this Agreement to
devote sufficient time, energy and skill to the business of the Company and to
the promotion of the best interests of the Company. Employee will be provided
with appropriate equipment, secretarial help, supplies, and other facilities and
services suitable to Employee's position and adequate for the performance of his
duties. Employees duties shall include, but not be limited to, oversight of the
Company's K5 Plastics, Inc. subsidiary, and the planning, assignment and
direction of the functions of tool making and assembly process tools. He will be
responsible for business development, costs, budgeting, efficiency, and managing
the workforce.
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3. COMPENSATION.
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3.1 Subject to the termination of this Agreement as provided herein,
the Company shall compensate Employee for his services hereunder at an annual
salary ("Salary") of Seventy Two Thousand Dollars ($72,000.00) payable in
semi-monthly installments in accordance with the Company's practices, less
normal payroll deductions.
3.2 In addition to the Salary as defined above, the Company agrees to
grant to Employee, upon the completion of twelve consecutive months of
employment, a one-time cash bonus in the amount of Fifteen Thousand Dollars
($15,000.00).
3.3 In addition to the compensation set forth above, the Company shall
periodically review Employee's performance and services rendered with a view to
paying discretionary bonuses based upon above-average or outstanding performance
for a prior period. Any such bonuses approved by the Company shall be paid to
Employee within 30 days of the grant thereof.
3.4 In addition to the Salary and bonuses stated above, commencing with
the Effective Date, Employee shall be eligible to participate in a health
insurance plan, including dependent coverage, supplied by the Company. Employee
shall be entitled to participate in any and all group life, workers'
compensation, health plan, or accidental insurance plans which are adopted by
the Company for the benefit of executive officers or employees. Employee shall
be entitled to such sick leave and paid holidays and to such other perquisites
of employment as customarily are extended by the Company to executive officers
or employees. In addition, Employee shall be entitled to such other benefits as
the Company may elect to provide generally, from time to time, to executive
officers or employees.
4. DISCLOSURE OF CONFIDENTIAL INFORMATION.
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4.1 Employee shall not, during the term of this Agreement and
thereafter, communicate, divulge, or use for the benefit of himself or any other
person, partnership, association, or corporation, either directly or indirectly,
any information or knowledge concerning Company and any information, including
but not limited to pricing schedules, customer lists, communication techniques,
invoicing, billing, schematics, hardware and software designs and prototypes,
and software source code which may be communicated to Employee by Company during
the term of this Agreement.
4.2 Employee agrees that any and all products, formulas, inventions,
schematics, hardware and software designs, software source code, techniques, and
goods created by Employee while rendering services to Company shall be
considered the property of the Company which shall own all rights and interest
in the same.
4.3 Employee covenants and agrees that during the term of this
Agreement he will not do any act or fail to do any act which may be prejudicial
or injurious to the business and goodwill of Company.
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5. EXPENSES.
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The Company shall reimburse Employee for all reasonable business
related expenses incurred by Employee in the course of his normal duties on
behalf of the Company. In reimbursing Employee for expenses, the ordinary and
usual business guidelines and documentation requirements shall be adhered to by
the Company and Employee. Any expenses which, individually or in the aggregate,
exceed Five Hundred Dollars ($500.00) must be consented to by the Company in
writing prior to being incurred by Employee.
6. TERMINATION.
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6.1 TERMINATION BY THE COMPANY. The Company reserves the right to
terminate this Agreement at any time for "cause". For the purposes of this
Agreement, an event or occurrence constituting "cause" shall include, but not be
limited to:
6.1.1 Employee's failure or refusal, after notice thereof,
to perform specific directives of the Board of Directors of
the Company, when such directives are consistent with the
scope and nature of the Employee's duties and
responsibilities as set forth herein or the commission of
any intentional tort by the Employee against the Company, or
any breach by the Employee of any of the covenants set forth
in paragraphs 2, 4, 5, or 10 of this Agreement;
6.1.2 Drunkenness or use of drugs which interferes with the
performance Employee's obligations under this Agreement,
continuing after notice thereof;
6.1.3 Any act of dishonesty or moral turpitude by the
Employee which constitutes a crime under the laws of the
place where the act was committed;
6.1.4 Any willful or intentional act by Employee which,
although not a crime, is of such impropriety or magnitude
that it substantially adversely affects the business and the
reputation of the Company.
6.1.5 Any material breach by Employee of that certain Stock
Purchase Agreement dated as of January 30, 1998 by and
between American Custom Components, Inc., a Nevada
corporation, K5 Plastics, Inc., a California corporation,
and Xxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxx X. Xxxxxx, Xxxxxxx
X. Xxxxx, and Xxxxxxxx Xxxxxxxxx, as shareholders.
In the event Employee is terminated for cause as defined herein,
Employee shall not be entitled to any bonus, termination or severance payment of
any sort.
6.2 TERMINATION UPON DEATH OR DISABILITY. This Agreement shall be
terminated upon the death of the Employee or, at the Company's discretion, if
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the Employee suffers any physical or mental disability that would prevent the
performance of his duties under this Agreement. Such a termination, in the case
of disability, shall be effected by giving thirty (30) days written notice of
termination to Employee.
6.3 TERMINATION BY EMPLOYEE. This Agreement may be terminated by the
Employee by giving the Company at least thirty (30) days notice in advance. In
the event that this Agreement is terminated prior to the completion of the term
of employment specified herein, Employee shall be entitled to compensation
earned by and vested in him prior to the date of termination as provided for in
this Agreement, computed pro-rata up to and including that date.
6.4 This Agreement shall not be terminated by any voluntary or
involuntary dissolution of the Company resulting from either a merger or
consolidation in which the Company is not the consolidated or surviving
corporation, or a transfer of all or substantially all of the assets of the
Company.
7. BINDING EFFECT.
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This Agreement shall be binding upon and inure to the benefit of the
parties hereto their respective devisees, legatees, heirs, legal
representatives, successors, and permitted assigns. The preceding sentence shall
not affect any restriction on assignment set forth elsewhere in this Agreement.
8. ARBITRATION.
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If a dispute or claim shall arise between the parties with respect to
any of the terms or provisions of this Agreement, or with respect to the
performance by any of the parties under this Agreement, then the parties agree
that the dispute shall be arbitrated in Orange County, California before a
single arbitrator, in accordance with the rules of either the American
Arbitration Association ("AAA") or Judicial Arbitration and Mediation Services,
Inc./Endispute ("JAMS/Endispute"). The selection between AAA and JAMS/Endispute
rules shall be made by the claimant first demanding arbitration. The arbitrator
shall have no power to alter or modify any express provisions of this Agreement
or to render any award which by its terms affects any such alteration or
modification. The parties to the arbitration may agree in writing to use
different rules and/or arbitrator(s). In all other respects, the arbitration
shall be conducted in accordance with the California Code of Civil Procedure, or
equivalent. The parties agree that the judgment award rendered by the arbitrator
shall be considered binding and may be entered in any court having jurisdiction
as stated in Paragraph 11 of this Agreement. The provisions of this Paragraph
shall survive the termination of this Agreement.
9. NOTICES.
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Any notice, request, demand, or other communication given pursuant to
the terms of this Agreement shall be deemed given upon delivery, if hand
delivered or delivered via facsimile, or Forty-Eight (48) hours after deposit in
the United States mail, postage prepaid, and sent certified or
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registered mail, return receipt requested, correctly addressed to the addresses
of the parties indicated below or at such other address as such party shall in
writing have advised the other party.
If to the Company:
American Custom Components, Inc.
0000 X. XxxXxxxxx Xxxx.
Xxxxx Xxx, XX 00000
Attn: Xxxxxx Xxxx Walk
Facsimile (000) 000-0000
with a copy to:
The Law Offices of M. Xxxxxxx Xxxxxx
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attn: M. Xxxxxxx Xxxxxx, Esq.
Facsimile (000) 000-0000
If to Employee:
Xxxxx Xxxxx
00000 Xxxxx Xxxxxx
Xxx Xxxx Xxxxxxxxxx, XX 00000
Facsimile (000) 000-0000
with a copy to:
Xxxxxx, Lassleben & Xxxxxx, LLP
00000 Xxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: J. Xxxxxxxx Xxxxxxxxxxx
Facsimile (000) 000-0000
10. ASSIGNMENT.
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Subject to all other provisions of this Agreement, any attempt to
assign or transfer this Agreement or any of the rights conferred hereby, by
judicial process or otherwise, to any person, firm, company, or corporation
without the prior written consent of the other party, shall be invalid, and may,
at the option of such other party, result in an incurable event of default
resulting in termination of this Agreement and all rights hereby conferred.
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11. CHOICE OF LAW.
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This Agreement and the rights of the parties hereunder shall be
governed by and construed in accordance with the laws of the State of California
including all matters of construction, validity, performance, and enforcement
and without giving effect to the principles of conflict of laws.
12. JURISDICTION.
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The parties submit to the jurisdiction of the Courts of the State of
California or a Federal Court empaneled in the State of California for the
resolution of all legal disputes arising under the terms of this Agreement,
including, but not limited to, enforcement of any arbitration award.
13. ENTIRE AGREEMENT.
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Except as provided herein, this Agreement, including exhibits, contains
the entire agreement of the parties, and supersedes all existing negotiations,
representations, or agreements and all other oral, written, or other
communications between them concerning the subject matter of this Agreement.
There are no representations, agreements, arrangements, or understandings, oral
or written, between and among the parties hereto relating to the subject matter
of this Agreement that are not fully expressed herein.
14. SEVERABILITY.
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If any provision of this Agreement is unenforceable, invalid, or
violates applicable law, such provision, or unenforceable portion of such
provision, shall be deemed stricken and shall not affect the enforceability of
any other provisions of this Agreement.
15. CAPTIONS.
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The captions in this Agreement are inserted only as a matter of
convenience and for reference and shall not be deemed to define, limit, enlarge,
or describe the scope of this Agreement or the relationship of the parties, and
shall not affect this Agreement or the construction of any provisions herein.
16. COUNTERPARTS.
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This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which shall together constitute
one and the same instrument.
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17. MODIFICATION.
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No change, modification, addition, or amendment to this Agreement shall
be valid unless in writing and signed by all parties hereto.17
18. WAIVER.
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No waiver of any breach, covenant, representation, warranty or default
of this Agreement by any party shall be considered to be a waiver of any other
breach, covenant, representation, warranty or default of this Agreement.
19. INTERPRETATION
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The terms and conditions of this Agreement shall be deemed to have been
prepared jointly by all of the Parties hereto. Any ambiguity or uncertainty
existing hereunder shall not be construed against any one of the drafting
parties, but shall be resolved by reference to the other rules of interpretation
of contracts as they apply in the State of California.
20. ATTORNEYS' FEES.
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Except as otherwise provided herein, if a dispute should arise between
the parties including, but not limited to arbitration, the prevailing party
shall be reimbursed by the non-prevailing party for all reasonable expenses
incurred in resolving such dispute, including reasonable attorneys' fees.
21. TAXES.
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Any income taxes required to be paid in connection with the payments
due hereunder, shall be borne by the party required to make such payment. Any
withholding taxes in the nature of a tax on income shall be deducted from
payments due, and the party required to withhold such tax shall furnish to the
party receiving such payment all documentation necessary to prove the proper
amount to withhold of such taxes and to prove payment to the tax authority of
such required withholding.
22. NOT FOR THE BENEFIT OF CREDITORS OR THIRD PARTIES.
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The provisions of this Agreement are intended only for the regulation
of relations among the parties. This Agreement is not intended for the benefit
of creditors of the parties or other third parties and no rights are granted to
creditors of the parties or other third parties under this Agreement. Under no
circumstances shall any third party, who is a minor, be deemed to have accepted,
adopted, or acted in reliance upon this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the Effective Date.
"Company" "Employee"
American Custom Components, Inc. Xxxxx Xxxxx
/S/ XXXXXX XXXX WALK /S/ XXXXX XXXXX
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By: Xxxxxx Xxxx Walk
Its: President
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