ead-ex10_9.htm - Generated by SEC Publisher for SEC Filing









 



EXHIBIT 10. 9


Executive Employment Agreement


 


            This Executive Employment Agreement (“Agreement”) is made effective as of the 7th day of May 2013 between Experience Art and Design, Inc., f/k/a Clear System Recycling, Inc., a Nevada corporation (the “Company”), and Gordon Root (“Employee”). 


 


WITNESSETH:


 


            WHEREAS, Company desires to employ Employee as Chief Executive Officer of the Company and define the terms and nature of their relationship, and Employee desires to be employed by the Company upon the terms and conditions stated herein; 


 


            WHEREAS, the Company wishes to protect its Confidential Information (as defined herein) and to restrict certain future solicitation and competition by Employee; 


 


            WHEREAS, Employee's execution of this Agreement is a requirement of Employee's employment with the Company; 


 


WHEREAS, for purposes of on-going compensation determinations by the Board of Directors of the Company as referenced in this Agreement, such determinations shall be made by the independent directors of the Board of Directors of the Company.


 


            WHEREAS, the parties hereto agree that this Agreement shall supersede any other prior agreements regarding Employee’s provision of services to the Company.


 


NOW, THEREFORE, in consideration of the premises, in further consideration of Employee’s employment by Company, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Company and Employee hereby agree as follows:


 


1.         Incorporation of Recitals.


 


            The above recitals are, and shall be construed to be, an integral part of this Agreement.  The parties hereto acknowledge and agree that this Agreement formalizes in writing certain understandings and procedures, which shall be in effect during the Term of Employee’s employment with the Company.


 


2.         Term of Agreement.


             


            The term of this Agreement shall be for a period of three (3) years commencing on the date hereof and continuing through April 30, 2016 (“Term”).


 


3.         Scope of Employment.


 


            A.        Employee’s continuation of employment with the Company shall be conditioned upon and subject to the satisfactory completion of a background check and a drug screening test if elected by the Company, the expense of which shall be borne by the Company.  


 


            B.         The Company agrees that during the Term of this Agreement, the Company shall employ Employee as Chief Executive Officer to perform the services of such nature normally assigned to such employees of a business of the size, stature, and nature of the Company, as the Board of Directors of the Company may from time to time assign.  The Employee will also be a member of the Board of Directors through the Term of this Agreement and while the Employee remains employed by the Company.  




 









 









 








 


            C.         Employee
hereby accepts such employment and agrees that during the Term of this
Agreement that: 


 


                        (i)         Employee
will perform such duties in the foregoing capacity, and agrees that fiduciary
duties normally applicable to officers, including, without limitation, those of
loyalty and due care, shall be applicable to Employee;


 


                        (ii)        Employee
will devote his working time and attention, as well as his best efforts and
abilities to the performance of his duties hereunder and to the affairs of the
Company, and shall not engage in any other gainful employment or other
provision of services to a third party, or other commercial or business
activity without the prior written consent of the Company;


 


                        (iii)       Employee
will not engage in any other activities which conflict, interfere with or
otherwise adversely affect in any way the proper discharge of his duties
hereunder and compliance with the covenants of Employee contained herein;


 


                        (iv)
      Employee will not enter into contracts or commitments on behalf of the
Company without the prior written authorization of the Board of Directors, and
Employee acknowledges and agrees that he shall not have any authority to do so
without such prior consent; and


 


                        (v)        Employee
will comply with all lawful policies, which from time to time may be in effect
at the Company or adopted by the Company and conveyed to Employee.


 


4.    
Compensation.


 


            As compensation for the services to be
performed by Employee hereunder, the Company agrees to pay to Employee, and
Employee agrees to accept, the following:


 


A.        Salary.  During the first year of the Term,
the Company will pay the Employee a monthly salary of Sixteen Thousand Dollars ($16,000)
to be paid in approximately equal installments on the first and sixteenth day
of each month as salary for that month, subject to applicable payroll taxes and
deductions as required by law. During the second and third years of the Term,
the monthly salary may be increased in the sole discretion of the Board of
Directors of the Company. 


 


B.         Performance Bonus.  The Company will pay
the Employee an annual performance bonus pursuant to the terms of certain goals
as established by and approved by the Board of Directors. The Employee’s Performance
Bonus may equal a maximum of 100% of annual compensation, however in no case
may it exceed the Company’s pre-tax profits for said year.


 


            C.
        Automobile allowance of $16,500 annually payable monthly on the 15th
of each month in the amount of $1,375.00 less any charges directly paid by the Company.


 


D.        Employee Benefits.    In addition to
Employee’s compensation, the Company shall make available to such Employee as approved
by the Board of Directors, during the Term hereof: 


 


(i)         Participation in any plans, to the extent
such plans are available to all similarly situated employees (unless restricted
due to Employee’s income level), which are from time to time offered to the
Company’s employees with respect to group health, life, accident and disability
insurance or payment plans, retirement plans, profit sharing or similar
employee benefits, if any, and subject to the satisfaction of insurance
underwriting requirements; provided, however, that the Company may elect to provide cash compensation to cover individually purchased
benefits in lieu of establishing corporate plans;







 










 








 










 


(ii)        Twenty seven days of paid annual vacation,
accrued based upon time employed (i.e. accrued at a rate of 2.25 days per
month), plus paid holidays designated as such by the Company;


 


(iii)       The Company shall reimburse Employee for
all reasonable and necessary business expenses incurred by Employee in connection
with Employee’s performance of services hereunder as soon as practicable in
accordance with the Company’s reimbursement policy following submission to the
Company by Employee of a written itemized account of such expenditures,
together with receipts therefor, all in accordance with the Company’s policy
and with applicable law, rules and regulations governing deductibility of such
amounts under the Internal Revenue Code of 1986, as amended; and


 


(iv)  Other fringe benefits regularly provided to the
similarly situated employees of the Company.


 


5.         Termination.


 


            A.        Termination
by the Company with Cause.  The Company may terminate Employee’s employment
with “Cause” as hereafter defined in this section upon written notice. “Cause”
shall mean Employee’s:  (i) conviction of, or indictment for, criminal
negligence or criminal acts in the work place or conviction of a felony, (ii)
violation of the Company’s material policies or procedures that have been made
known to Employee, or violation by Employee on Company premises of any law or
material regulation, (iii) material breach or violation of this Agreement, (iv)
commission of any act of theft, fraud, dishonesty, or falsification of any
employment or Company records, (v) appropriation of a business opportunity or
transaction in contravention of Employee’s duties to the Company, (vi) any
improper action by Employee which has a detrimental effect on the Company’s
reputation or business, (vii) failure to perform the duties assigned or
requested by the Board of Directors, or (viii) gross negligence, incompetence
or willful misconduct by Employee in the performance of Employee’s duties.  In
the event that Employee is terminated with “Cause,” Employee shall only be
entitled to the payment of Employee’s then-current accrued, unpaid Compensation
and accrued unused vacation, each prorated through the date of termination.  In
the case of an event of Cause under clauses (ii), (iii), (vi) or (vii), with
the exception of any such events of Cause arising from breach of any of the
provisions of Sections (i), (iv), (v) or (viii) hereof, Employee shall be
provided the opportunity to cure such event within a reasonable time following
written notice thereof and not to exceed thirty (30) days following such notice
(the “Cure Period”), and if the Employee desires to effect a cure to same then
Employee shall provide the Company with written notice within five business
days following receipt of notice of Cause of such desire, and in the absence of
such cure by Employee within the Cure Period Employee shall be deemed
terminated upon the expiration of the Cure Period unless otherwise mutually
agreed in writing.  However, notwithstanding the foregoing, Employee shall not
be provided the opportunity pursuant to the foregoing sentence to cure Employee’s
repeated or persistent actions, failures or omissions occurring within a three-month
period which constitute Cause (in the absence of cure) hereunder and which
would otherwise be curable but for such reoccurrence. 


 


            B.         Termination
by Employee for Good Reason.  Employee may terminate his employment hereunder
for Good Reason. “Good Reason” shall mean (i) a material diminution of
Employee’s employment duties without Employee’s consent, which consent shall
not be unreasonably withheld;  (ii) a material and persistent breach by the
Company of Section 4 hereof; or (iii) a Change in Control.  Employee shall
provide the Company forty five (45) days prior written notice of his intention
to resign for Good Reason, which states his intention, to resign and sets forth
the reasons therefor, and any resignation without delivery of such notice shall
be considered to be a resignation for other than Good Reason.
In the event that Employee terminates his employment pursuant to this section,
Employee shall be entitled to (i) payment of Employee’s then-current accrued,
unpaid Compensation and accrued, unused vacation, each prorated through the
date of termination, and (ii) an amount in respect of individual severance pay
equivalent to 90 days of the then current full year compensation. During the
forty five (45) day period following the delivery of such notice, Employee
shall reasonably cooperate with the Company in locating and training Employee’s
successor and arranging for an orderly transference of his responsibilities.  







 










 








 










 


                             For purposes of this
section, "Change in Control" shall mean the occurrence of the first
step, including, but not limited to, commencement of negotiations, in a process
that results in any one of the following events: (1) the acquisition by any individual,
entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended) (the  "Exchange Act") of
beneficial ownership (within the meaning of Rule 13d-3 of the Act) of 40% or
more of the (A) then outstanding voting stock of the Company; or (B) the
combined voting power of the then outstanding securities of the Company
entitled to vote; (2) an ownership change in which the shareholders of the
Company before such ownership change do not retain, directly or indirectly, at
least a majority of the beneficial interest in the voting stock of the Company
after such transaction, or in which the Company is not the surviving company;
(3) the direct or indirect sale or exchange by the beneficial owners (directly
or indirectly) of the Company of all or substantially all of the stock of the
Company; (4) a reorganization, merger, or consolidation in which the Company is
a party; (5) the sale, exchange, or transfer of all or substantially all of the
assets of the Company; (6) the bankruptcy, liquidation or dissolution of the
Company; or (7) any transaction including the Company in which the Company
acquires an ownership interest of any percentage in, enters into a joint
venture, partnership, alliance or similar arrangement with, or becomes owned in
any percentage by, any other entity that is engaged in a business similar to
the business engaged in by the Company and that has operations in North America
immediately before such transaction or within one year thereafter.


 


            C.         Termination
Due to Employee’s Death or Disability.  In the event that this Agreement and
Employee’s employment is terminated due to Employee’s death or disability,
Employee (or Employee’s legal representatives) shall be paid Employee’s
then-current unpaid compensation and accrued, unused vacation, each prorated
through the date of termination. For purposes of this Agreement, the term
“disability” shall mean the mental or physical inability to perform
satisfactorily the essential functions of Employee’s full-time duties, with or
without a reasonable accommodation, as determined by a physician mutually
agreed by the Company and Employee, such agreement not to be unreasonably
withheld; provided, however, that any disability which continues (subject to any
requirements of applicable law) for one hundred twenty (120) days (whether or
not consecutive) in any twenty-four (24) month period shall be deemed a total
and permanent disability.


 


6.         Representations,
Warranties and Certain Covenants of Employee.


 


Employee hereby
represents, warrants and covenants to the Company that:


 


            A.        Employee
is not subject to any agreement, including any confidentiality,
non-solicitation, non competition, or invention assignment, agreement or other
restrictive covenant, whether oral or written, which would in any way restrict
or prohibit Employee’s ability to execute this Agreement, perform Employee’s
obligations under this Agreement or otherwise comply with the terms of this
Agreement;


 


            B.         Employee
has respected and at all times in the future will continue to respect the
rights of Employee’s previous employer(s) in trade secret and confidential
information in accordance with applicable agreements, if any, and applicable
law;


 









 










 








 








            C.         Employee has left with
Employee’s previous employers all proprietary documents, computer software
programs, computer discs, customer lists, and any other material which is
proprietary to Employee’s previous employer(s), has not taken copies of any
such materials and will not remove or cause to be removed any such material or
copies of any such material from such previous employer(s) in violation of
Employee’s agreements, if any, with previous employers;


 


            D.        Employee
has not done, and hereafter will not do anything, by contract or otherwise,
which would impair the rights of the Company in and to any Company Developments
(as defined below), the Company Materials (as defined below), or the ability of
Employee to perform Employee's obligations under this Agreement;


 


E.         Employee shall not, during the term of his employment
with the Company, do anything or authorize any other person or entity to do
anything contrary to the material rights and interests of the Company in
contravention of Employee’s obligations under this Agreement; 


 


            F.         The
information Employee supplied to the Company in connection with Employee’s
employment is true, correct, and complete; and


 


            G.        So
long as Employee remains employed by the Company, any and all business
opportunities from whatever source which Employee may receive or otherwise become
aware of in connection with his employment with the Company relating to the Business
of the Company shall belong to the Company, and unless the Company
specifically, after full disclosure by Employee of each and any such
opportunity, waives its right in writing, the Company shall have the sole right
to act upon any of such business opportunities as the Company deems advisable. 


 


7.         Work for Hire
and Invention Assignment.   


 


A.        Employee
agrees that any and all work performed hereunder and any resulting Developments
shall be “work made for hire” within the meaning of the Copyright Act of 1976,
as amended.  Employee hereby assigns to the Company Employee’s entire right,
title and interest in said Developments.  Furthermore, Employee shall execute
all instruments of assignment and any other documents requested by Company
relating to the Company’s ownership of any and all Developments or to
applications for patents, copyrights and trademarks and the enforcement and
protection thereof.


 


B.         Employee
shall mark all Developments with the Company’s copyright or other proprietary
notice as directed by the Company and shall take all actions deemed necessary
by the Company to protect the Company’s rights therein including, without
limitation, the maintenance of such item in confidence to the same degree as
required for Confidential Information (as herein defined) or as otherwise
instructed by the Company.  In the event that the Developments shall be deemed
not to constitute works made for hire, or in the event that Employee should
otherwise, by operation of law, be deemed to retain any rights (whether moral
rights or otherwise) to any Developments, Employee agrees to assign to the
Company, without further consideration, Employee’s entire right, title and
interest therein.


 


C.         Assistance. 
Employee further agrees to reasonably assist the Company in every proper way
(but at the Company’s expense) to obtain and from time to time enforce patents,
copyrights, or other rights or registrations with respect to Developments in
any and all countries, and to that end will execute all documents necessary:


 


                        (i)         to
apply for, obtain and vest in the name of the Company alone (unless the Company
otherwise directs) letters patent, copyrights, or other analogous protection in
any country throughout the world and when so obtained or vested to renew and
restore the same; 









 










 








 








 


                        (ii)        to
defend any opposition proceedings in respect of such applications and any
opposition proceedings or petitions or applications for revocation of such
letters patent, copyright or other analogous protection; and 


 


                        (iii)       to
cooperate with the Company (but at the Company’s expense) in any enforcement or
infringement proceeding on such letters patent, copyright or other analogous
protection.


 


8.         Confidential Information       


             


A. 
Confidential Information. 


 


Employee
acknowledges and agrees that:


 


(i)         During
the course of Employee's employment with the Company, Employee will learn
about, will help to develop and will develop, and will be entrusted in strict
confidence with (1) confidential and proprietary information and trade secrets
that are or will be owned by the Company and are not available to the general
public or the Company’s competitors concerning the Company, including its
sales, operations, financial condition, financial projections, profit margins,
personnel matters (including the identity of the Company’s top-performing
personnel, hiring criteria, and training techniques), intermediate and
long-term business goals and strategic plans, promotional strategies and
techniques, pricing and cost structure of services, customer identities,
customer relationship histories, customer records, customer service matters,
customer preferences, needs and idiosyncrasies, formal customers and prospects,
identity of vendors and suppliers, special vendor and supplier pricing and
delivery terms, computer programs and codes, research and development,
specifications, algorithms, processes, formulas methods, technical data,
know-how, complications, designs, drawings, photographs, other machine-readable
records, business activity and other confidential aspects of the Company and
its business and operations; (2) information which the Company will be required
to keep confidential in accordance with confidentiality obligations to third parties;
and (3) other matters and materials belonging to or relating to the internal
affairs of the Company, including information recorded on any medium which
gives it an opportunity to obtain an advantage over its competitors which do
not know or use the same or by which the Company derives actual or potential
value from such matter or material not generally being known to other persons
or entities which might obtain economic value from its use or disclosure (all
of the foregoing being hereinafter collectively referred to as the
"Confidential Information");


 


(ii)        It is
imperative that the Employee treat whatever information the Company wants to
protect from disclosure as genuinely “Confidential,” i.e. restricting access by
pass code, stamping hard copies “Confidential,” and restricting access thereto
except by personnel, and the like;


 


(iii)       The
Company has developed or purchased and will develop or purchase the
Confidential Information at substantial expense in a market in which the
Company faces intense competitive pressure, and the Company has kept and will
keep secret the Confidential Information; and


 


(iv)       The
Company has a legitimate interest in protecting the goodwill, customer
information, customer relationships, and use of Employee’s skills by means of
enforcement of the restrictive covenants set forth in this Agreement.


 


B.  Confidentiality
Covenants. 


 


In consideration of
Employee’s employment and compensation and other consideration described
herein, Employee acknowledges and agrees that:









 










 








 








 


            (i)         To
the extent that Employee developed or had access to Confidential Information
before entering into this Agreement, Employee represents and warrants that he
has not used for his own benefit or for the benefit of any other person or
entity, and he has not disclosed, directly or indirectly, to any other person
or entity, other than the Company, any of the Confidential Information.  Unless
and until the Confidential Information becomes publicly known through
legitimate means not involving an act or omission by Employee or the Company’s
other employees or independent contractors:


 


(A)       The
Confidential Information is, and at all times hereafter shall remain, the sole
property of the Company; 


 


(B)       Employee
shall use his best efforts and diligence to guard and protect the Confidential
Information from disclosure to any competitor, customer or supplier of the
Company or any other person, firm, corporation, or other entity;


 


(C)       Unless the
Company gives Employee prior express written permission, during his employment
and thereafter, Employee shall not use for his own benefit, or divulge to or
use for the benefit of any competitor or customer or any other person, firm,
corporation, or other entity, any of the Confidential Information which
Employee may obtain, learn about, develop, or be entrusted with as a result of
Employee's employment by the Company; and


 


(D)       Except in
the ordinary course of the Company's Business, Employee shall not seek or
accept any Confidential Information from any former, present, or future
contractor or employee of the Company.


 


(ii)        Employee
also acknowledges and agrees that all documentary and tangible Confidential
Information including, without limitation, such Confidential Information as
Employee has committed to memory, is supplied or made available by the Company
to Employee solely to assist him in performing his duties under this
Agreement.  Employee further agrees that upon termination of his employment
with the Company for any reason:


 


(A)       Employee
shall not remove from Company property, and shall immediately return to the
Company, all documentary or tangible Confidential Information in his
possession, custody, or control and not make or keep any copies, notes,
abstracts, summaries, tapes or other record of any type of Confidential
Information; and 


 


(B)       Employee
shall immediately return to the Company any and all other Company property
belonging to or within the custody or possession of the Company or as to which
the Company has the right of possession, in his possession, custody or control,
including, without limitation, all internal manuals, customer or client work
papers, data, software, and other written materials (and all copies thereof)
prepared for internal use by the Company or used in connection with the
Business or operations of the Company, any and all keys, security cards,
passes, credit cards, and marketing literature. 


 


9.         Return of Material.  


 


Upon termination of employment with
Company, and regardless of the reason for such termination, or upon the
Company’s request, Employee will leave with, or promptly return to Company and
its customers all documents, records, notebooks, magnetic tapes, disks,
computers, network hardware, and other materials, including all copies in his
possession or control which contain Confidential Information of Company and its
customers and prospects or any other information concerning
Company and its customers, prospects, products, services or customers, whether
prepared by the Employee or others, including, without limitation, Company
Materials and Developments.







 










 








 










 


10. 
Covenants Not To Compete and Anti-Piracy. 


 


            Employee
acknowledges that the services rendered by Employee on behalf of the Company
are of a special and unique character, that Employee has been provided a
substantial equity stake in the Company, and that during the performance of
such services, Employee will acquire, because of the special relationship among
the Company, Employee and the Company’s customers and clients, valuable
information, trade secrets, customer lists, proprietary information, financial
information and unique skills. Accordingly, Employee covenants, in
consideration of Employee’s employment and compensation and other consideration
described above, that while Employee is employed by the Company and for a
period of six (6) months after the termination of Employee’s employment with
the Company for any reason, Employee shall not without the prior written
consent of the Company, directly or indirectly, either on Employee’s own behalf
or on behalf of any other person work as an independent contractor for or be
employed by another company, person, firm, corporation, proprietorship,
partnership or other entity in competition with the Company which is engaged
primarily in the Business.  Employee acknowledges that in the event that Employee’s
employment with the Company terminates, Employee will be able to earn a
livelihood without violating the foregoing covenants.


 


11.  Non-Solicitation of Customers.


 


            In consideration of his employment and
compensation and other consideration described herein, Employee agrees that for
a period of twenty four (24) months immediately following the termination of
Employee’s employment with the Company, Employee will not, either for himself
or on behalf of any other person or entity, directly or indirectly, solicit,
attempt or offer to provide services or provide services, competitive with
those services rendered or products sold by or on behalf of the Company during
the term of this Agreement, to any past or present client of the Company for
whom the Company has performed services or to whom the Company has sold
products during the one (1) year period prior to the termination of Employee’s
employment. 


 


12.       Non-Solicitation of Employees.


 


            In consideration of his employment and
compensation and other consideration described herein, Employee agrees that
Employee will not during both the term of this Agreement and the twelve (12)
months following the termination of Employee's employment, without the written
consent of the Company, for any reason, directly or indirectly, or by action in
concert with others, induce or influence, or seek to induce or influence, any
person who is engaged by the Company as an employee, agent, independent
contractor or otherwise, to terminate his or her employment or engagement, nor shall
Employee prior to the expiration of such period, directly or indirectly,
solicit for employment or engagement, employ or engage, attempt to employ or
engage, or advise or recommend to any other person or entity that such person
or entity employ or engage or solicit for employment or engagement, any person
or entity employed or engaged by the Company.


 


 


13.       Equitable
Relief.


 


            Employee
acknowledges and agrees that the Business is highly competitive, and that
violation of any of the covenants and agreements provided for in Sections 8 -
12 of this Agreement would cause immediate, immeasurable and irreparable
harm, loss and damage to the Company not adequately compensable by a monetary
award.  Accordingly, Employee agrees, without limiting any of the other
remedies available to the Company, that any violation of said covenants, or any
of them, may be enjoined or restrained by any court of
competent jurisdiction, and that any temporary restraining order or emergency,
preliminary or final injunctions may be issued by any court of competent
jurisdiction, without notice and without bond.  In the event any proceedings
are commenced by the Company for any actual or threatened violation of any of
said covenants or agreements or the Company shall engage legal counsel or incur
other costs and expenses related to the enforcement of said covenants or
agreements, Employee shall be liable to the Company to the extent the Company
is the prevailing party in such proceedings (or in the absence of a proceeding,
to the extent the services of attorneys and the incurrence of such other costs
and expenses were reasonably required for the Company’s enforcement of the
provisions of this Agreement, as determined by the Company’s Board of Directors)
for all reasonable costs and expenses of any kind, including reasonable
attorneys' fees, which the Company has incurred in connection with such
proceedings or enforcement activities, including, without limitation, in
connection with the enforcement of the provisions of this section.  Employee
acknowledges that in the event that Employee’s employment with the Company
terminates, Employee will be able to earn a livelihood without violation of the
aforesaid covenants of this Agreement.  







 










 








 










 


14.        Binding
Effect and Benefit.


 


The
provisions hereof shall be binding upon, and shall inure to the benefit of,
Employee, his heirs, executors, and administrators as well as to Company, its
successors, and assigns; however, Employee’s services under this personal
services contract are not assignable by Employee.


 


15.         Waivers.


 


No delay on the part
of any party in the exercise of any right or remedy shall operate as a waiver
thereof, and no single or partial exercise or waiver thereof by any party of
any right or remedy shall preclude the exercise or further exercise thereof or
the exercise of any other right or remedy.


 


16.       Severability; Interpretation.


 


Whenever
possible, each of the provisions of this Agreement shall be construed and
interpreted in such a manner as to be effective and valid under applicable
law.  If any provisions of this Agreement (including but not limited to
Sections 8, 10 through 12) or the application of any provision of this
Agreement to any party or circumstance shall be prohibited by, or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition without invalidating the remainder of such provision, any other
provision of this Agreement, or the application of such provision to other
parties or circumstances.  Headings used in this Agreement are for convenience
of reference only.  


 


17.        
Entire Agreement.


 


Any
and all prior discussions, understandings, and agreements, whether written or
oral, express or implied, including, without limitation, any offer letter, held
or made between Employee and the Company are superseded by and merged into this
Agreement, which alone fully and completely expresses the agreement of the
parties with regard to the matters addressed herein, and this Agreement is
entered into with no party relying on any statement or representation made by
any other party which is not contained in this Agreement. 


 


18.       Amendments.


 


This Agreement may
be modified, amended or supplemented only by execution of a written instrument
signed by both Employee and the Company.


 









 










 








 








19.       Survival.


 


The
provisions of Sections 8, 10 through 12 and 13 through 23 shall survive any
termination of Employee’s employment hereunder and any termination or
expiration of this Agreement.


 


20.       Presumptions.  


 


            In resolving any dispute or construing any
provision hereunder, there shall be no presumptions made or inferences drawn
because the attorneys for one of the parties drafted the Agreement.


 


21.       Counterparts.   


 


            This
Agreement may be executed in one or more counterparts and by transmission of a
facsimile or digital image containing the signature of an authorized person,
each of which shall be deemed and accepted as an original, and all of which
together shall constitute a single instrument.  


 


22.       Arbitration/Waiver
of Claims.   


 


The Parties hereby waive any claim they may have
against either party regarding any affairs between the Parties prior to this
Agreement.  The Parties agree that in the event of any and all
disagreements and controversies arising from this Agreement such disagreements
and controversies shall be subject to binding arbitration as arbitrated in
accordance with the then current Commercial Arbitration Rules of the American
Arbitration Association to be held in Portland, Oregon before one neutral
arbitrator. Either Party may apply to the arbitrator seeking injunctive relief
until the arbitration award is rendered or the controversy is otherwise
resolved. Without waiving any remedy under this Agreement, either Party may
also seek from any court having jurisdiction any interim or provisional relief
that is necessary to protect the rights or property of that Party, pending the
establishment of the arbitral tribunal (or pending the arbitral tribunal’s
determination of the merits of the controversy). In the event of any such
disagreement or controversy, neither Party shall directly or indirectly reveal,
report, publish or disclose any information relating to such disagreement or
controversy to any person, firm or corporation not expressly authorized by the
other Party to receive such information or use such information or assist any
other person in doing so, except to comply with actual legal obligations of
such Party or unless such disclosure is directly related to an arbitration
proceeding as provided herein, including, but not limited to, the prosecution
or defense of any claim in such arbitration.  The costs and expenses of
the arbitration (including attorneys’ fees) shall be paid by the non-prevailing
Party or as determined by the arbitrator.  The Parties are hereby waiving
any claims against each other party for any activities or prior business
transactions between the parties to date.  This paragraph shall survive
the termination of this Agreement.  


 


 


 


 


 


 


(Signature Page Follows)









 










 







 



IN WITNESS WHEREOF, this Agreement has been executed and delivered by the parties hereto as of the date set forth above.


 


EXPERIENCE ART AND DESIGN, INC.                                  EMPLOYEE: 


 


 


By:       /s/ Kenneth Kepp                                                          /s/ Gordon Root                                   


            Kenneth Kepp                                                             Gordon Root


            Chief Financial and Operating Officer


 


                                                 


 


Caution to Employee:  This Agreement affects important rights including, without limitation, rights to inventions and other intellectual property that Employee may develop during his Employment.  DO NOT sign it unless you have read it carefully and are satisfied that you understand it completely.