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Exhibit 10.11
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made as of August 1, 1999, by and between
XXXXXXXXXXXX.XXX, INC., a California corporation (the "Company") and Xxxx Xxxx,
("Employee").
1. EMPLOYMENT. The Company hereby employs Employee to render exclusive and
full-time services subject to the terms, conditions and provisions of this
Agreement. Employee shall be an officer of the Company and shall have the title
"President". Employee shall render his services at such places in Camarillo,
California and as the Company shall designate from time to time
2. ACCEPTANCE OF EMPLOYMENT. Employee hereby accepts employment by the
Company subject to the terms, conditions and provisions of this Agreement, and
agrees to devote his entire working time and attention and best talents and
abilities exclusively to the service of the Company as the Company may direct
during the term hereof. It is expressly understood and agreed that in the
performance of his duties and obligations hereunder, Employee shall at all times
be subject to the control and direction of the Company's Board of Directors.
3. TERM. Notwithstanding the date on which this Agreement is actually
executed by the Company and Employee or the date on which Employee is actually
elected President, the term of this Agreement shall begin as of July 1, 1999,
and shall continue until June 30, 2000, unless sooner terminated as hereinafter
provided. In the event that Employee shall continue in the full-time employment
of the Company after June 30, 2000, such continued employment shall be subject
to the terms and conditions of this Agreement. The term of this Agreement shall
include the period during which Employee in fact so continues in such
employment.
4. DUTIES. In his capacity as President, he shall assist the Chief
Executive Officer, at his directions in the execution of the Company's business
plan.
4.1 EXCLUSIVE EMPLOYMENT. Employee shall devote his full business
time and effort during normal business hours to the business and affairs of the
Company. Employee shall not be involved in any business activities other than
those performed for the Company except as shall be permitted by the Board of
Directors of the Company, as evidenced by resolution of the Board of Directors.
Nothing in this Section shall prevent Employee from making passive financial
investments. For purposes of this Agreement, "full business time" shall mean an
average minimum of forty (40) hours per week as such weekly average shall be
determined each month.
4.2 SERVICES. Employee shall perform the duties of the President of
the Company, as defined in the Company's Bylaws in effect from time to time.
5. COMPENSATION.
5.1 SALARY. In full consideration for the services to be rendered by
Employee and in complete discharge of its salary obligations hereunder, the
Company shall pay to Employee and Employee shall accept from the Company the
following (subject to all withholding requirements which may be imposed by
applicable federal, state or local authorities):
5.1.1 a salary equal to Seventy-two Thousand Dollars
($72,000.00) per year, which salary shall be paid in accordance with the
Company's normal payment procedures;
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5.1.2 reimbursement on a monthly basis for all reasonable
expenses incurred in connection with the performance of duties under this
Agreement, provided that such expenses are documented and approved by the
Company in each instance;
5.1.3 such fringe benefits (such as paid vacations and
participation in medical insurance plans and employee benefit plans) as may be
authorized from time to time by the Board of Directors and as are generally
available to all executive officers and senior employees of the Company; and
5.1.4 such other benefits (if any) as may be authorized from
time to time by the Board of Directors of the Company and as are generally
available to all executive officers and senior employees of the Company.
5.2 STOCK OPTION PLAN. Employee shall be eligible to participate in
the Company's 1997 Stock Option Plan and all other stock option, stock bonus and
other incentive plans here or hereafter adopted by the Company, and in which
executive officers and senior employees of the Company generally are eligible to
participate.
5.3 BONUS. Promptly after the end of each fiscal year, but in no
event later than June 30, the Company shall review Employee's performance during
such fiscal year and shall determine whether the Company shall pay Employee a
bonus with respect to such fiscal year and, if so, the amount of any such bonus.
Employee acknowledges and agrees that nothing in this Agreement or the Company's
general policies shall require the Company to pay Employee a bonus for any
fiscal year, to pay Employee a bonus in particular amount or to pay Employee a
bonus by reason of the Company's payment of a bonus to any other employees of
the Company. Notwithstanding anything in this Agreement to the contrary, the
Company shall have no obligation to pay Employee any bonus for any fiscal year
unless the amount and determination to pay the bonus has been approved by the
Board of Directors of the Company.
5.4 ANNUAL REVIEW. At the end of each fiscal year of the Company,
the Company's Board of Directors shall review the salary and other benefits
payable and provided to Employee under this Agreement and shall adjust such
compensation and benefits effective as of the first day of the succeeding fiscal
year to reflect employee's performance during the just-ended fiscal year.
6. POLICIES AND REGULATIONS. Employee shall observe, comply with and be
bound by all of the policies, rules and regulations established by the Company
with respect to its employees and otherwise, all of which are subject to change
by the Company from time to time.
7. TERMINATION.
7.1 TERMINATION BY THE COMPANY. The Company may terminate this
Agreement by giving to Employee thirty (30) days prior written notice of the
resolution of the Company's Board of Directors to discharge Employee for
"cause". For purposes of this Section, the term "cause" shall mean and include
only (a) conviction of or confession by Employee to theft, fraud, or
embezzlement against the Company; (b) Employee's refusal or failure, after
specific notice and demand by the Company, to diligently perform services for
the Company as required by Section hereof; and (c) the incapacity or disability
of Employee, as a result of which Employee is prevented from fully performing
Employee's services under this Agreement for a consecutive period of sixty (60)
days or longer or an aggregate of ninety (90) days or more during any
twelve-month period. This Agreement shall terminate automatically at the end of
such 30-day period and the Company shall have no further obligation to give
Employee any further notice of termination.
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7.2 TERMINATION BY EMPLOYEE. Employee may terminate this Agreement
for "cause" by giving the Company thirty (30) days prior written notice of
employee's intent to terminate his employment. For purposes of this Section ,
the term "cause" shall include, but not be limited to the Company's breach or
failure to perform any of its material obligations under this Agreement. At the
end of such 30-day period, the Company's obligations to Employee under this
Agreement shall cease; except that the Company shall be required to pay Employee
any compensation that may be owing for services rendered under this Agreement
prior to the date of termination.
7.3 EMPLOYEE'S DEATH. This Agreement shall terminate automatically
as of the date of Employee's death.
7.4 EFFECT OF TERMINATION. In the event of the termination of this
Agreement and except as otherwise specifically provided in this Agreement, the
Company shall be released and discharged of and from all obligations under this
Agreement except for its obligation to pay to Employee monies due and owing to
Employee with respect to services performed prior to the date of termination of
this Agreement.
8. SUCCESSORS. This Agreement shall inure to the benefit of the Company's
successors, assigns, grantees, and its affiliated, subsidiary, and parent
companies. The Company may assign this Agreement and grant its rights hereunder
in whole or in part to any affiliate, subsidiary or parent of the Company, to
its successor or successors, or to a corporation with which it may be merged,
consolidated, or combined, or to a corporation which may acquire all or a major
portion of the Company's assets; provided that no such assignment shall be
effective unless and until any such assignee shall expressly assume all of the
Company's obligations hereunder.
9. CONFIDENTIAL INFORMATION.
9.1 CONFIDENTIALITY. Employee shall not, either during the term of
this Agreement or thereafter, except in the proper course of his performance of
services under this Agreement, use or divulge, publish or disclose to any
person, firm or company whomsoever any confidential information of the Company
or any of its affiliate, subsidiary, or parent companies which he has heretofore
received or obtained or hereafter receives or obtains, in relation to (a) the
earnings, profits, costs, expenses or other financial aspects of the Company or
such other company, (b) the clients, customer lists, or marketing practices of
the Company or such other company, or (c) any other confidential information of
the Company or such other company. The term "confidential information" shall
mean all that information which here or hereafter is not generally known and
which is confidential or proprietary to the Company or such other company. All
information disclosed to Employee, or which Employee may obtain or have access
to by reason of his employment under this Agreement, whether such information is
originated by Employee or by others, which Employee reasonably should believe to
be confidential information, or which is treated by the Company as confidential
information, shall be treated for all purposes under this Agreement as
confidential information. Immediately upon termination of his employment
hereunder Employee shall return to the Company all records, files, documents and
other materials (in whatever form or media) and all copies thereof, which
contain or relate to any confidential information of the Company.
9.2 OWNERSHIP OF CONFIDENTIAL INFORMATION. Employee hereby
acknowledges that all Confidential Information is the property of the Company.
9.3 INJUNCTIVE RELIEF. Employee hereby acknowledges and agrees that
it would be difficult to fully compensate the Company for damages for a breach
or threatened breach of any of the provisions of
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Sections 10.1 and 10.2 or hereof. Accordingly, Employee specifically agrees that
the Company shall be entitled to temporary and permanent injunctive relief to
enforce the provisions of Sections 10.1 and 10.2 and hereof and that such relief
may be granted without the necessity of proving actual damages. The foregoing
provision with respect to injunctive relief shall not, however, prohibit the
Company from pursuing any other rights or remedies available to the Company for
such breach or threatened breach, including, but not limited to, the recovery of
damages from Employee or any third parties.
10. MISCELLANEOUS PROVISIONS.
10.1 NOTICES. Any notice given pursuant to this Agreement may be
served personally on the party to be notified or may be mailed, with postage
thereon fully prepaid, by certified or registered mail with return receipt
requested, addressed to the person at the address set forth on the signature
page of this Agreement, or at such other address as such party may from time to
time designate in writing. Any notice shall be deemed delivered when given, if
personally served, and ten (10) business days after mailing, if mailed.
10.2 WAIVERS. All rights and remedies of the parties hereto are
separate and cumulative, and no one of them, whether exercised or not, shall be
deemed to limit or exclude any other rights or remedies which the parties hereto
may have. Neither party hereto shall be deemed to waive any rights or remedies
under this Agreement unless such waiver be in writing and signed by such party.
No delay or omission on the part of either party hereto in exercising any right
or remedy shall operate as a waiver of such right or remedy or any other right
or remedy. A waiver of any right or remedy on any one occasion shall not be
construed as a bar to or waiver of any such right or remedy on any future
occasion.
10.3 SEVERABILITY. If any provision or portion thereof of this
Agreement is held to be unenforceable or invalid, the remaining provisions and
portions thereof shall nevertheless be given and continue in full force and
effect.
10.4 SECTION HEADINGS. Section headings contained in this Agreement
are for convenience only and are not a part of this Agreement and do not in any
way limit or modify the provisions of this Agreement.
10.5 SURVIVAL OF CERTAIN PROVISIONS. Notwithstanding anything to the
contrary contained herein, in the event of any termination of this Agreement,
the Company shall retain all of its rights under Sections 8.1, 8.2, 8.3 and 8.4,
and hereof.
10.6 AUTHORIZED REPRESENTATIVE OF COMPANY. Although Employee is an
officer of the Company, any and all actions and decisions to be taken or made by
the Company under this Agreement or with respect to the employment relationship
described in this Agreement, and any and all consents, approvals and agreements
permitted or required to be given or made on the part of The Company under this
Agreement, shall be made and accomplished by the Company only through the
actions taken, in writing, of its Chief Executive Officer or such other person
or persons as the Board of Directors of the Company may from time to time
designate.
10.7 ARBITRATION. Except for any action for specific performance or
injunctive or other equitable relief, any controversy or claim between the
Company and Employee involving the construction or application of any of the
terms, provisions or conditions of this Agreement shall be settled by
arbitration conducted in the City of Camarillo in accordance with, and by an
arbitrator appointed pursuant to, the Rules
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of the American Arbitration Association in effect at the time, and judgment upon
the award rendered pursuant thereto may be entered in any court having
jurisdiction hereof, and all rights or remedies of the parties hereto to the
contrary are hereby expressly waived. The arbitration will be conducted in
private, and will not be open to the public or the media. The testimony and
other evidence presented, and the results of the arbitration, unless otherwise
agreed to by both parties, are confidential and may not be made public or
reported by any news agency or legal publisher or service.
10.8 ENTIRE AGREEMENT. This Agreement contains the entire
understanding between the parties hereto, and supersedes any prior written or
oral agreements between them respecting the subject matter contained herein.
There are no representations, agreements, arrangements, or understandings,
either oral or written, between or among any of the parties relating to the
subject matter of this Agreement which are not fully expressed herein.
10.9 AMENDMENT. This Agreement may be amended only in writing duly
executed by all of the parties hereto.
10.10 GOVERNING LAW. All questions with respect to the construction of
this Agreement and the rights and liabilities of the parties with respect
thereto shall be governed by the laws of the State of California.
10.11. ATTORNEY'S FEES. In any arbitration, suit or other action
between the parties seeking enforcement of any of the terms and provisions of
this Agreement, the prevailing party in such arbitration, suit or other action
shall be awarded, in addition to damages, injunctive or other relief, its
reasonable costs and expenses, not limited to taxable costs, and a reasonable
attorney's fees.
(Signatures appear on the following page)
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IN WITNESS WHEREOF, the parties have entered into this Employment
Agreement as of the day and year first above written.
"Company" "Employee"
XXXXXXXXXXXX.XXX, INC.
By: /s/ XXX XXXXX /s/ XXXX X. XXXX
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Xxx Xxxxx, CEO Xxxx X. Xxxx
ADDRESS FOR NOTICE ADDRESS FOR NOTICE
0000 Xxxxx Xxxx, Xxxxx 000 _____________________________
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: CEO _____________________________
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