EXHIBIT 10.11
-------------
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made, entered into, and
effective as of 14 January, 2002 (the "Effective Date"), by and between EssTec,
Inc., a Nevada corporation ("Company"), and Xxxxx X. X. Xxxxxxx, an individual
("Employee") (collectively, the "Parties").
RECITALS
--------
A. Company is engaged in the business of information technology
services and maintains an office in the State of California.
B. Company desires to have an employment agreement with Employee as its
Executive Vice President subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, the Parties hereto hereby agree as follows:
AGREEMENT
---------
1. At Will Employment. Company hereby employs Employee and Employee accepts
-------------------
employment with Company on an "at will" basis. Either party may terminate this
Agreement at any time, with or without cause.
2. Duties and Obligations of Employee. Employee shall serve as Executive
-------------------------------------
Vice President. Employee shall report to CEO or other individual designated by
the Board of Directors of the Company. Employee shall faithfully and diligently
perform all professional duties and acts as may be requested and required of
Employee by Company or its Directors. Employee shall devote such time and
attention to the business of Company as shall be required to perform the
required services and duties. Employee at all times during the employment term
shall strictly adhere to and obey all policies, rules and regulations
established from time to time governing the conduct of employees of Company
3. Exclusivity, Non-Disclosure.
----------------------------
a. Devotion to Company Business. Employee agrees to perform Employee's
-----------------------------
services efficiently and to the best of Employee's ability. Employee agrees
throughout the term of this Agreement to devote his time, energy and skill to
the business of the Company and to the promotion of the best interests of the
Company.
b. Trade Secrets. Employee agrees that he shall not at any time,
---------------
either during or subsequent to his employment term, unless expressly consented
to in writing by Company, either directly or indirectly use or disclose to any
person or entity any confidential information of any kind, nature or description
concerning any matters affecting or relating to the business of Company,
including, but not limited to, information concerning the customers of Company,
1
Company's marketing methods, compensation paid to employees, independent
contractors or suppliers and other terms of their employment or contractual
relationships, financial and business records, know-how, or any other
information concerning the business of Company, its manner of operations, or
other data of any kind, nature or description. Employee agrees that the above
information and items are important, material and confidential trade secrets and
these affect the successful conduct of Company's business and its goodwill.
c. Inventions and Patents. All processes, inventions, patents,
------------------------
computer software, copy-rights, trademarks and other intangible rights
(collectively referred to as "Intellectual Property") that may be conceived or
developed by Employee during the Employment Term, either alone or with others,
made or conceived by him shall remain the sole property of Company.
4. Compensation.
------------
a. Annual Salary. Subject to the termination of this Agreement as
---------------
provided herein, Company shall compensate Employee for his services hereunder at
an annual salary of $ 42,000 payable as:
i. Cash payment of $ 1,000 per month payable in 15 day cycles.
ii. Accrual of $ 8,000 per month payable after the Initial Public
Offering of the Company's stocks.
Normal payroll deductions would be levied on all payments, and they will be
prorated for the actual employment term.
b. Salary Increases; Additional Compensation. Employee shall receive
--------------------------------------------
such annual increases in salary and such additional compensation as may be
determined by the Board of Directors of the Company in its sole discretion.
Such salary increases and/or additional compensation shall be paid to Employee
on the anniversary date of this Agreement during the Employment Term, and at
such other times as may be determined by the Board of Directors.
5. Employee Incentives.
---------------------
a. Incentive Stock Option. Employee shall receive 50,000 Incentive
-------------------------
Stock Options with an exercise price of $ 5.00, as per Company's Stock Option
plan. These Options will vest as per following schedule:
i. 50,000 Options will vest upon Initial Public Offering by the
company.
ii. 25,000 Options will vest over a period of 12 months starting from
the date of this agreement.
6. Employee Benefits.
-------------------
Employee shall be entitled to all benefits offered by the Company as per
the Company's Employee Handbook.
7. Business Expenses. Employee will be required to incur travel, meals,
-------------------
entertainment and other business expenses on behalf of the Company in the
performance of Employee's duties hereunder. Company will reimburse Employee for
2
all such reasonable business expenses incurred by Employee in connection with
Company's business upon presentation of receipts or other acceptable
documentation of the expenditures. In compensating Employee for expenses, the
ordinary and usual business guidelines and documentation requirements shall be
adhered to by Company and Employee.
8. Termination of Employment.
----------------------------
a. Termination for Cause. Company may terminate this Agreement for
------------------------
cause at any time. For purposes of this Agreement, the term "cause" shall
include, but not be limited to, the following: a material breach of or failure
to perform any covenant or obligation in this Agreement, disloyalty, dishonesty,
neglect of duties, unprofessional conduct, acts of moral turpitude,
disappearance, felonious conduct, or fraud. Company may terminate this
Agreement for cause by giving written notice of termination to Employee without
prejudice to any other remedy to which Company may be entitled either at law, in
equity, or under this Agreement. The notice of termination required by this
section shall specify the ground for the termination and shall be supported by a
statement of all relevant facts.
b. Termination Upon Death or Disability.
-----------------------------------------
i. Death. This Agreement shall be terminated immediately upon the
-----
death of Employee
ii. Disability. Company reserves the right to terminate this Agreement
----------
if, due to illness or injury, either physical or mental, Employee is unable to
perform Employee's customary duties as an employee of Company, unless reasonable
accommodation can be made to allow Employee to continue working, for more than
30 days in the aggregate out of a period of twelve consecutive months. The
disability shall be determined by a certification from a physician. Such a
termination shall be effected by giving ten days' written notice of termination
to Employee. Termination pursuant to this provision shall not prejudice
Employee's rights to receive disability insurance payments or the continued
compensation pursuant to Section 4(c) of this Agreement.
iii. Without cause. Termination under this section for either death or
--------------
disability shall not be considered "for cause" for the purposes of this
Agreement.
c. Effect of Merger, Transfer of Assets, or Dissolution. Without the
-------------------------------------------------------
prior written consent of Employee, this Agreement shall not be terminated by any
voluntary or involuntary dissolution of Company resulting from a merger or
consolidation in which Company is not the consolidated or surviving corporation,
or a transfer of all or substantially all of the assets of Company. In the
event of any such merger or consolidation or transfer of assets, Employee's
rights, benefits, and obligations hereunder shall be assigned to the surviving
or resulting corporation or the transferee of Company's assets.
d. Payment on Termination. Notwithstanding any provision of this
------------------------
Agreement, if Company terminates this Agreement without cause, other than upon
death or disability as set forth above, it shall pay Employee the remaining
salary amount for the remaining outstanding term of this Agreement or any
renewal thereof at the then current rate of compensation.
3
e. Termination by Employee.
-------------------------
i. Without Cause. Employee may terminate this Agreement without cause
---------------
upon 30 days prior written notice to Company.
ii. With Cause. Employee may terminate this Agreement immediately with
------------
cause, in which event Employee shall receive the Payment on Termination in
accordance with Section 8(d) herein. For the purposes of this Agreement, "cause"
for termination by Employee shall be a breach of any material covenant or
obligation hereunder; or the termination of this Agreement without the prior
written consent of Employee due to the voluntary or involuntary dissolution of
the Company, any merger or consolidation in which the Company is not the
surviving or resulting corporation, or any transfer of all or subsequently all
of the assets of Company.
9. General Provisions.
--------------------
a. Binding Effect. 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.
b. Notices. Any notice, request, instruction, or other document
--------
required by the terms of this Agreement, or deemed by any of the Parties hereto
to be desirable, to be given to any other Party hereto shall be in writing and
shall be given by facsimile, personal delivery, overnight delivery, or mailed by
registered or certified mail, postage prepaid, with return receipt requested, to
the Company at the address of its corporate office and to the Employee at the
Employee's home address as it appears in the Employee's personnel records.
Addresses may be changed from time to time by a notice sent as aforesaid. If
notice is given by facsimile, personal delivery, or overnight delivery in
accordance with the provisions of this Section, said notice shall be
conclusively deemed given at the time of such delivery. If notice is given by
mail in accordance with the provisions of this Section, such notice shall be
conclusively deemed given seven business days after deposit thereof in the
United States mail.
c. Sums Due Deceased Employee. If Employee dies prior to the
------------------------------
expiration of the employment term, any sums that may be due him from Company
under this Agreement as of the date of death shall be paid to Employee's
executors, administrators, heirs, personal representatives, successors, and
assigns.
4
d. Arbitration. If a dispute or claim shall arise with respect to any
-----------
of the terms or provisions of this Agreement, or with respect to the performance
by either of the Parties under this Agreement, other than a dispute with respect
to Section 3 of this Agreement, then either party may, with notice as herein
provided, require that the dispute be submitted under the Commercial Arbitration
Rules of the American Arbitration Association ("AAA"). Each party shall bear
one-half (1/2) of the cost of appointing the arbitrator and of paying such
arbitrator's fees. The written decision of the arbitrator(s) ultimately
appointed by or for both Parties shall be binding and conclusive on the Parties.
Judgment may be entered on such written decision of the single arbitrator in any
court having jurisdiction and the Parties consent to the jurisdiction of the
Municipal and Superior Court of Orange County, California for this purpose.
Any arbitration undertaken pursuant to the terms of this section shall occur in
Orange County, California.
e. Assignment. 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.
f. Choice of Law. 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.
g. Indemnification. Company shall indemnify, defend and hold Employee
---------------
harmless, to the fullest extent permitted by law, for all claims, demands,
losses, costs, expenses, obligations, liabilities, damages, recoveries and
deficiencies, including interest, penalties and reasonable attorney's fees that
Employee shall incur or suffer that arise from, result from or relate to the
discharge of Employee's duties under this Agreement. Company shall maintain
adequate insurance for this purpose or shall advance Employee any expenses
incurred in defending any such proceeding or claim to the maximum extent
permitted by law.
h. Jurisdiction. 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.
i. Entire Agreement. 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.
5
j. Severability. 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.
k. Captions. 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.
l. Modification. No change, modification, addition, or amendment to
------------
this Agreement shall be valid unless in writing and signed by all Parties
hereto.
m. Attorneys' Fees. 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 exclusive of such amount of attorneys' fees as shall be a
premium for result or for risk of loss under a contingency fee arrangement.
n. Taxes. 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.
o. Not for the Benefit of Creditors or Third Parties. 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.
g. Counterparts; Facsimile Signatures. This Agreement may be executed
-----------------------------------
simultaneously in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. The Parties agree that facsimile signatures of this Agreement shall
be deemed a valid and binding execution of this Agreement.
h. Conflict Waiver. Both Employee and the Company (the "Parties")
----------------
hereby agree and acknowledge that the law firm of Xxxx Xxxxxxx Xxxxxxxxx, LLP
("SPM"), which represents the Company, has drafted this Agreement. The Parties
hereto further acknowledge that they have been informed of the inherent conflict
of interest associated with the drafting of this Agreement by SPM and waive any
action they may have against SPM regarding such conflict. The Parties have been
given the opportunity to consult with counsel of their choice regarding their
rights under this Agreement.
6
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
duly executed as of the Effective Date.
"Company" "Employee"
EssTec, Inc., Xxxxx D. C. Edwardes
a Nevada corporation
__________________________________ _______________________________________
BY: Xxxxx X Xxxxxx Xxxxx D. C. Edwardes
ITS: VP Operations
7
