Exhibit 10.11
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made effective the 15th day of February, 1994,
by and between ROSETTA TECHNOLOGIES INC., a Wyoming corporation, with principal
offices located at 0000 Xxxxx Xxxx 000 Xxxxx, Xxxxx X000, Xxxxxx, Xxxxx
00000-0000 (hereinafter referred to as the "Employer"), and XXXX X. XXXXXXXX, a
resident of Austin, Texas (hereinafter referred to as the "Employee").
W I T N E S S E T H:
WHEREAS, the Employer desires to employ the Employee, and the Employee and
Employer desire to enter into an agreement relating to such employment,
outlining the duties and obligations of each:
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein set forth, it is agreed as follows:
1. EMPLOYMENT. The Employer agrees to employ the Employee, and the
Employee agrees to be employed by the Employer, subject to the terms and
conditions set forth herein.
2. TERM. Subject to the provisions hereof, the term of the Employee's
employment by the Employer under this Agreement shall expire on February 14,
1995; provided that such term of employment shall continue thereafter unless
and until terminated by either the Employer or the Employee upon no less than
one hundred twenty (120) days' prior written notice to the other of the
desire to terminate such employment. The term of the Employee's employment
hereunder, including any continuation of the original term, is hereinafter
referred to as the "Employment Period."
3. POSITION AND DUTIES. During the Employment Period, the Employee shall
serve as President and Chief Executive Officer of the Employer with such
assignments, powers and duties as are assigned or delegated to him by the Board
of Directors of the Employer. Such assignments, powers and duties may, from
time to time, be modified by the Employer, as the
Employer's needs may require. The Employee shall also, at the request of the
Employer, perform similar services for any Affiliate (as hereinafter defined)
of the Employer without additional compensation. The Employee agrees to
devote all of his business time, skill, attention and best efforts to the
business of the Employer and its Affiliates in the advancement of the best
interests of the Employer and its Affiliates. As used in this Agreement, the
term "Affiliate" of the Employer means any person or corporation that,
directly or indirectly through one or more intermediaries, controls or is
controlled by or is under the control of the Employer.
4. COMPENSATION.
A. For all services rendered by the Employee to the Employer during
the Employment Period, the Employer shall pay the Employee a salary at the
rate of One Hundred Thousand Dollars ($100,000) annually. The compensation
is to be payable, subject to such withholdings as are required by law, in
installments in accordance with the Employer's customary payroll practices.
B. The Employer will grant to the Employee an option to purchase Two
Hundred Thousand (200,000) shares of its common stock (the "Option") at an
option price determined by the policies, guidelines, rules and regulations of
the Vancouver Stock Exchange. One third of the Option shall vest on each of
the first, second and third anniversaries of the date of grant and shall
expire five (5) years from the date of grant. In the event of a "change of
control" (defined as ownership of more than 40% of the combined voting power
of the Employer's then outstanding securities by a "Person," as used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended)
of the Employer, the Option shall become fully vested and exercisable.
C. On approximately September 1, 1994, the Chairman of the Board of
Directors of the Employer will review the Employer's operations and the
Employee's performance since February 15, 1994 and from such review will
determine the Employee's eligibility for a bonus of up to Twenty Thousand
Dollars ($20,000) and additional stock options for up to One Hundred
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Thousand (100,000) shares of the Employer's common stock. The awarding and
amount of the bonus and the granting of additional stock options shall be
subject to approval of the Board of Directors of the Employer and the
Vancouver Stock Exchange.
5. OFFICE FACILITIES. During the Employment Period, the Employer will
furnish the Employee, without charge, suitable office facilities for the
purpose of performing his duties hereunder, which facilities shall include
secretarial, telephone, clerical and support personnel and services and shall
be similar to those furnished to employees of the Employer having comparable
positions.
6. FRINGE BENEFITS; VACATIONS. During the Employment Period, the
Employee shall be entitled to participate in or receive benefits under such
pension, medical and life insurance and other employee benefit plans of the
Employer which may be in effect from time to time, to the extent he is
eligible under the terms of those plans, on the same basis as other employees
of the Employer having comparable positions. The Employee shall be entitled
to vacations with pay in accordance with the policies of the Employer in
effect from time to time.
7. EXPENSES. Subject to such policies regarding expenses and expense
reimbursement as may be adopted from time to time by the Employer and
compliance therewith by the Employee, the Employee is authorized to incur
reasonable expenses in the performance of his duties hereunder, and the
Employer will reimburse Employee for such reasonable out-of-pocket expenses
upon the presentation by the Employee of an itemized account and receipts
satisfactory to the Employer.
8. TERMINATION.
A. If the Employee dies or becomes disabled during the Employment
Period, the Employee's salary and other rights under this Agreement or as an
employee of the Employer (except for salary and other rights accrued prior
thereto) shall terminate at the end of the month during which death or
disability occurs. For purposes of this Agreement, the Employee shall be
deemed to be "disabled" if, at any time during the Employment Period, the
Employee shall have
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been unable to perform the duties of his employment hereunder due to physical
or mental incapacity for a period of ninety (90) days or any ninety (90) days
in a period of two hundred seventy (270) days.
B. If the Employee fails to perform his duties hereunder or to
comply with any of the provisions hereof or commits any act of misconduct,
malfeasance, gross negligence or disloyalty, the Employment Period and the
Employee's salary and other rights under this Agreement as an employee of the
Employer, subject to 8C below, shall terminate upon written notice from the
Employer to the Employee, but such termination shall not affect the liability
of the Employee by reason of his misconduct, malfeasance, gross negligence or
disloyalty.
C. If it is determined that the Employer has terminated the Employee
without cause as determined in accordance with Section 8B above, the Employee
will not be subject to the provisions of Section 10, COVENANT NOT TO COMPETE,
herein.
9. COVENANTS NOT TO DISCLOSE. The Employee covenants and agrees that he
will not, at any time during or after the termination of his employment by
the Employer, communicate or disclose to any person, or use for his own
account, or advise, discuss with, or in any way assist any other person or
firm in obtaining or learning about, without the prior written consent of the
Employer, information concerning any inventions, processes, programs,
systems, flow charts or equipment used in, or any secret or confidential
information (including, without limitation, any customer lists or trade
secrets) concerning, the business and affairs of the Employer or any of its
Affiliates acquired by the Employee during the term of his employment by the
Employer. The Employee further covenants and agrees that he shall retain all
such knowledge and information concerning the foregoing in trust for the sole
benefit of the Employer and its Affiliates and their respective successors
and assigns.
10. COVENANT NOT TO COMPETE. The Employee covenants and agrees that,
during the Employment Period and for a period of one (1) year after the
voluntary resignation of the Employee or termination for cause as outlined in
8B herein, he will not directly render services
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or advice to, or be engaged in a business during such one-year period which
is in competition with the business of the Employer except in the course of
his employment hereunder or except upon the written consent of the Employer.
11. ESSENTIAL NATURE OF COVENANTS. The covenants of the Employee
contained in Sections 9 and 10 shall be construed as independent of any other
provision of this Agreement; and the existence of any claim or cause of
action of the Employee against the Employer or any of its subsidiaries,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by the Employer of said covenants. The Employee
understands that the covenants contained in Sections 9 and 10 are essential
elements of the transactions contemplated by this Agreement and, but for the
agreement of the Employee to Sections 9 and 10, the Employer would not have
agreed to enter into such transactions.
12. REMEDIES. In the event of a breach or threatened breach by the
Employee of Section 9 or 10, the Employer shall be entitled to a temporary
restraining order and an injunction restraining the Employee from the
commission of such breach. Nothing herein contained shall be construed as
prohibiting the Employer from pursuing any other remedies available to it for
such breach or threatened breach, including the recovery of money damages.
13. WAIVER OF BREACH. The waiver by one party of a breach of any
provision of this Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach by the other party.
14. BINDING EFFECT. This Agreement shall inure to the benefit of and
shall be binding upon the parties hereto and their respective successors,
assigns, heirs and legal representatives. Insofar as the Employee is
concerned, this Agreement, being personal, cannot be assigned.
15. SEVERABILITY. The invalidity of all or any part of any section of
this Agreement shall not render invalid the remainder of this Agreement or
the remainder of such section. If any provision of this Agreement is so
broad as to be unenforceable, such provision shall be interpreted to be only
so broad as is enforceable.
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16. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall, when executed, be deemed to be an
original, but all of which together shall constitute one and the same
instrument.
17. GOVERNING LAW. This Agreement shall be construed (both as to validity
and performance) and enforced in accordance with and governed by the laws of
the State of Texas.
18. NOTICE. All Notices which are required or may be given under this
Agreement shall be in writing and shall be deemed to have been duly given
when delivered in person or three (3) days after being mailed by registered
or certified first-class mail, postage prepaid, return receipt requested, if
to the Employee at 000 Xxxxxxx, Xxxxxx, Xxxxx 00000, or if to the Employer,
at the address listed above, or to such other address as such party shall
have specified by notice to the other party hereto as provided in this
section.
19. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior agreements,
understandings and arrangements, oral or written, between the parties hereto
with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and date first above written.
ROSETTA TECHNOLOGIES INC.
By: /s/ XXXXXX X. XXXXXX, XX.
____________________________
Xxxxxx X. Xxxxxx, Xx.
Chairman
/s/ XXXX X. XXXXXXXX
________________________________
XXXX X. XXXXXXXX
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