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EXHIBIT 10.134
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of February 8, 1999 (the "Agreement") by
and between Wilshire Technologies, Inc., a California corporation (the
"Company") and Xxxxxxxx Xxxxx, an individual residing at San Diego, California
("Executive").
The Company and Executive desire to set forth the terms and conditions
on which (i) the Company shall employ Executive as Vice President and Chief
Financial 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 February 8, 1999 through February 7, 2000. Commencing February 8, 2000, 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 her full
attention and expend her 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 Vice
President and Chief Financial Officer of the Company. In the performance of her
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 President and Chief Executive Officer of
the Company (the "CEO") and shall be subject to the direction and control of the
CEO.
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2.3 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 her duties.
2.4 Without first obtaining the written permission of the
CEO 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.
2.5 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, (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 her 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 $115,000, subject to review after one year, payable in
installments in accordance with the Company's regular practice, but not less
often than monthly.
3.2 The Company hereby grants Executive a ten-year
Non-Qualified Stock Option under the Company's 1995 Stock Option Plan to
purchase 50,000 shares of the common stock of the Company at the option exercise
price of $ 0.39 per share. The option shall vest immediately as to 16,666
shares, vests on February 8, 2000 as to an additional 16,666 shares, vests on
February 8, 2001 as to the remaining 16,667 shares, and has the other terms and
conditions set forth in the Non-Qualified Stock Option Agreement attached to
this Agreement, and incorporated herein by reference.
3.3 Executive shall be entitled to reasonable periods of
paid sick leave, three weeks paid vacation per year and holidays in accordance
with the Company's regular policy.
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3.4 Executive is authorized to incur reasonable expenses in
the performance of her 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.
3.5 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.
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 CEO, 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 CEO
within ten days following notice by the CEO to Executive regarding such
misconduct, (iv) refused to follow any lawful directive of the CEO to Executive
concerning material aspect of the Company's business, (v) has made any
misrepresentation to the Company under Section 2.5 hereof, or (vi) has been
incapable to perform her 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 her 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 her 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 her death.
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5. Restrictive Covenants.
5.1 Executive acknowledges that (i) she has a major
responsibility for the administration, development and growth of the Company's
business, (ii) her work for the Company will bring her 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 her
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
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mandatory relief obtained in any court of competent jurisdiction without the
necessity of 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 her knowledge Executive is insurable at standard (non-rated) premiums.
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 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
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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: Xxxxxxxx X. Xxxxx
00000 Xxxxxx Xxxx
Xxx Xxxxx, XX 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.
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.
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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 February 19, 1999.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date hereinabove written.
WILSHIRE TECHNOLOGIES, INC.
By: /s/ Xxxx Xxx Xxxxxx
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Title: President and Chief Executive Officer
EXECUTIVE
/s/ Xxxxxxxx X. Xxxxx
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Xxxxxxxx X. Xxxxx
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