EX-10.11 EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 28th day of August, 2002, at
Westminster, Colorado, between EVERLERT, INC., a Nevada corporation
("Corporation" or "Company" or "Employer"), and XXXXX XXXXXXXXX, ("Employee" or
"Executive").
In consideration of the mutual covenants, agreements and provisions
contained in this Agreement, the parties agree as follows:
EMPLOYMENT
1.0 EMPLOYMENT. Employer employs Employee as President, and Employee accepts
employment, upon the terms and conditions set forth herein.
2.0 TERM. This Agreement shall commence effective as of August 27,2002, and
shall continue in effect for a period of three (3) years (the "Employment
Period"); unless terminated earlier, by Company or Employee, upon prior written
notice. Further, if a change of control (as defined herein) of the Company shall
have occurred during the Employment Period, this Agreement shall continue in
effect for a period of twelve (12) months beyond the month in which such change
of control occurred.
3.0 CHANGE OF CONTROL. The term "Change of Control of the Company" shall mean a
change in control of a nature that would be required to be reported in response
to Item 5(f) of Schedule 14A of Regulation 14A promulgated under the Securities
Exchange Act of 1934 as in effect on the date of this Agreement or, if Item 5(f)
is no longer in effect, any regulations issued by the Securities and Exchange
Commission pursuant to the Securities and Exchange Act of 1934 which serve
similar purposes; provided that, without limitation, such change in control
shall be deemed to have occurred if and when (a) any "person" (as such term is
used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934) is
or becomes a beneficial owner, directly or indirectly, of securities of the
company representing 25% or more of the combined voting power of the company's
then outstanding securities or (b) individuals who were members of the board of
directors of the Company immediately prior to a meeting of the shareholders of
the Company involving a contest for the election of directors shall not
constitute a majority of the board of directors following such election.
4.0 COMPENSATION. For all services to be rendered by the Employee pursuant to
his duties set forth in this Agreement, the Employee shall be paid as
compensation;
4.1. BASE SALARY AND CONSIDERATIONS. A fixed compensation in the amount
of 1,500,000 shares of common stock per year, payable in equal annual
installments, registered under Form 144. This salary, shall be reviewed and may
be adjusted from time to time during the term of this Agreement by the
Corporation's board of directors or Compensation and Benefits Committee of the
Board.
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4.1.1 PERFORMANCE BONUS. Company shall also pay to executive, a bonus
from time-to-time based upon performance of the executive. The criteria to help
determine the performance of the executive may include for example, stock price,
market share, sales, earnings per share, return on effective merger and or
acquisitions. The ultimate amount of bonus shall be determined by the Corporate
board of directors.
4.2. STOCK ISSUANCES. Executive shall be issued:
4.2.1 One Million Five hundred thousand (1,500,000)
unregistered shares of the Common Stock of the Company annually. Company
undertakes no obligation to register these shares.
Issuance of the shares shall be in accordance with all
applicable securities laws and any and all other terms and conditions of the
Company's ESSP to be adopted by the Company.
4.3 EMPLOYEE BENEFIT PLANS. The Employee, his dependents and
beneficiaries, shall be entitled to participate in any pension, profit sharing,
medical reimbursement, insurance or other employee payment or benefit plan of
the Employer as may be in effect from time to time, subject to the participation
standards and other terms thereof, to the same extent as other officers under
the benefit practices of the Company.
4.3.1 PENSION AND PROFIT SHARING PLANS. Executive shall be
entitled to participate in any pension or profit sharing plan or other type of
plan adopted by Company for the benefit of its officers and/or regular employees
4.4 CUMULATIVE COMPENSATION. The compensation provided for in
paragraphs 4.1, 4.1.1, 4.2 and 4.3 above, together with the perquisites set
forth in section 6.0 below, are in addition to the benefits provided for upon
termination pursuant to Section 12.0 below.
4.5 INDEMNIFICATION. The Corporation hereby agrees to indemnify, and
keep indemnified in accordance with, and to the fullest extent authorized by,
the Laws of the State of Colorado as it may be in effect from time to time, the
Employee, from and against any expenses (including attorney's fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by the
Employee in connection with any threatened, pending or completed action, suit or
proceeding, whether or not such action is by or in the right of the Corporation
or such other enterprise with respect to which the Employee serves or has served
as a director, officer or employee, by reason of the fact that the Employee is
or was a director, officer or employee , of the Corporation, or is or was
serving at the request of the Corporation as a director, officer or employee of
another corporation, partnership, joint venture, trust or other enterprise. The
indemnification rights granted to the Employee under this Agreement shall not be
deemed exclusive of, or in limitation of, any rights to which Employee may be
entitled under the law of its state of incorporation, the Corporation's
Certification of Incorporation of By-Laws, any other agreement, vote of
stockholders or directors or otherwise.
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5.0 EXPENSES. During the term hereof, the Corporation will reimburse the
Employee for any reasonable out-of-pocket expenses incurred by the Employee in
performance of service for the Corporation under this Agreement (e.g.,
transportation, lodging and food expenses incurred while traveling on
Corporation business) and any other expenses incurred by the Employee in
furtherance of the Corporation's business; provided, however, that the Employee
renders to the Corporation a complete and accurate accounting of all such
expenses.
6.0 PERQUISITES. During the period of employment, Employee shall be entitled to
perquisites, including, without limitation, an appropriate office, and fringe
benefits accorded executives of equal rank.
7.0 MINIMUM COMPENSATION. Nothing in this Agreement shall preclude the Company
from amending or terminating any employee benefit plan or practice or the
provision of certain perquisites; provided, however, that it is the intent of
the parties that the Employee shall continue to be entitled, during the period
of employment, to compensation, benefits and perquisites as set forth above at
least equal to those attached to his position on the date of this Agreement.
Nothing in this Agreement shall operate or be construed to reduce, or authorize
a reduction, without the Employee's written consent, in the level of such
compensation, benefits and perquisites.
8.0 VACATIONS. The Employee shall be entitled to a vacation with full
compensation equal to (3) weeks each year; provided, however, that the
Employee's vacation will be scheduled at such time as will least interfere with
the business of the Employer. Attendance at a business seminar is not to be
deemed a vacation; provided, whoever, that attendance at such meetings or
seminars shall be planned so as to least interfere with the business of the
Employer.
9.0 EMPLOYMENT. The Company hereby agrees to continue the Executive in its
employ, and the Executive hereby agrees to remain in the employ of the Company,
for the Employment Period as specified in Section 2.0, to exercise such
authority and perform such duties as are commensurate with the authority being
exercised and duties being performed by the Executive immediately prior to the
effective date of this Agreement, which services shall be performed at the
location where the Executive was employed immediately prior to the Effective
Date of this Agreement or at such other location as the Company may reasonably
require; provided that the Executive shall not be required to accept a location
which is unreasonable in the light of the Executive's personal circumstances
10.0 PERFORMANCE. It is contemplated that during the period of employment the
Employee shall serve as an executive of the Company with the office and title of
President reporting directly to the Chief Executive Officer during the period of
employment, the Employee shall hold a position of responsibility and importance
and a position of scope, with the functions, duties and responsibilities
attached thereto, at least equal to in responsibility and importance and in
scope to and commensurate with his position described in general terms in this
Section 10.0.
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11.0 TERMINATION.
11.1 During the period of employment, Employee may terminate this
Agreement without cause or for cause. For the purposes of this Section 11.1, the
term "cause" shall include the occurrence of any of the following:
11.1.1 The breach or violation by the Company of any of the
terms of this Agreement;
11.1.2 Any significant change in position, duties and
responsibilities of the Employee to which the Employee does not consent;
11.1.3 In the event of a change in control as defined in
Section 2.0 hereof, any change in the circumstances of employment which the
Employee determines, in good faith, results in his being unable to carry out the
duties and responsibilities attached to the position and contemplated by the
definition of that position set forth in this Agreement.
11.2 In the event of an occurrence described in subsection 11.1.1,
11.1.2, or 11.1.3 above, the Employee shall serve written notice of such event
upon the Company, setting forth in detail the circumstances which the Employee
has determined constitutes "cause" within any of those definitions. In the event
the Company should remedy or otherwise cure the facts constituting the cause
relied upon by the Employee within thirty (30) days after such written notice,
such fact or circumstance shall not be deemed to constitute "cause" for which
employment can be terminated within the meaning of Section 11.1 above.
11.3 During the period of employment, the Corporation may terminate
this Agreement for cause and upon 30 days written notice and opportunity to cure
being given to Employee. For the purpose of this Section 11.3, the term "cause"
shall include the occurrence of any of the following:
11.3.1 Employee breaches or violates any of the terms of this
Agreement;
11.3.2 Employee is convicted of any felony or is shown to have
engaged in any act of dishonesty or fraud upon the Corporation, any of its
affiliated companies, or any of its customers or clients;
11.4 During the period of employment, the Corporation may not terminate
this Agreement without cause.
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11.5 This Agreement shall also terminate upon the insolvency,
bankruptcy, dissolution, or liquidation of the Corporation or cessation of
business by the Corporation for at least thirty (30) consecutive days.
12.0 TERMINATION PAYMENTS. In the event of a Termination and subject to the
provisions of Sections 11.1.1., 11.1.2., 11.1.3. or 11.4 of this Agreement, the
Company shall pay to the Executive and provide him with the following:
12.1 the Company shall continue to pay the Executive his salary on a
monthly basis at the same rate as an amount equal to payment at Executive's base
salary rate for the remaining period of Term, plus an amount equal to one
hundred percent (100%) of Executive's base salary. Any shares not yet vested in
Employee shall vest immediately.
12.2 During the remainder of the Employment or payment Period, the
Executive shall continue to be treated as an employee under the provisions of
any incentive compensation described in Section 4.2. In addition, the Executive
shall continue to be entitled to all benefits and service credit for benefits
under medical, insurance, split-dollar life insurance and other employee benefit
plans, programs and arrangements of the Company described or referred to in
Section 4.3 as if he were still employed during such period under this
Agreement.
12.3 If, despite the provisions of paragraph 12.2 above, benefits or
the right to accrue further benefits under any stock option or other incentive
compensation arrangement described in Section 4.2 shall not be provided under
any such arrangement to the Executive or his dependents, beneficiaries or estate
because he is no longer an employee of the Company, the Company shall, to the
extent necessary, pay or provide for payment of such benefits to the Executive
or his dependents, beneficiaries or estate.
13.0 DISABILITY.
13.1 If the Employee is unable to perform the Employee's services by
reason of illness or incapacity, the Employee's regular compensation shall be
continued for a period of four (4) months following the week in which such
illness or incapacity commences, at the end of which time no further
compensation shall be due and payable to the Employee until the Employee shall
return and resume the Employee's duties. In the event the Employee is eligible
to receive payments on account of the fringe benefit program covering disability
provided by the Corporation, then the Employee's base salary, as defined as
above, will be reduced to the extent of such entitlement and receipt.
13.2 If, because of illness, physical or mental disability or other
incapacity, Employee shall fail, for a period of 120 work days during the term
hereof, to render the services provided for by this Agreement, or if Employee
contracts an illness or injury which will permanently prevent performance by him
of the services and duties provided for by this Agreement by notice to the
Employee effective 30 days after the giving of such notice, after which
additional compensation shall be due as contained in paragraph 14.0 after the
receipt of which no additional compensation shall be due.
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14.0 DEATH. In the event of the death of Employee during the term of this
Agreement, his employment hereunder shall terminate on the date of his death. In
the accounting between the Employer and the Employee's personal representative,
Employee's estate shall be due compensation under this Agreement equal to one
year of Employee's salary. Further one-fourth of the total amount of shares to
be issued to Employee pursuant to 4.2.1, Three Million Six Hundred (3,600,000)
shares, shall vest immediately, if not yet vested in Employee prior to his
death.
15.0 COMPETITION.
15.1 Employee convenants to and with the Employer, its successors and
assigns, that during the term of this Agreement and for a period of twelve (12)
months from the date of the termination of this Agreement for any reason, he
will not directly or indirectly, enter into any agreement or arrangement with
any other person, firm, corporation or entity to conduct any research or
development, nor shall Employee directly or indirectly conduct such research or
development on his own behalf, related to the discovery of processes,
inventions, improvement, development or commercialization of any new device,
apparatus or product competitive with a product developed, produced or reduced
to practice solely by the Corporation, unless Employee shall have first obtained
the Corporation's expressed written consent thereto.
15.2 In the event of a breach or threatened breach by Employee of any
provisions of this Section 15.0 the Corporation shall be entitled to an
injunction restraining it from the commission of such breach. Nothing herein
contained shall be construed as prohibiting the Corporation from pursuing any
other remedies available to it for such breach or threatened breach, including
the recovery of money damages. The covenants contained in this Section 15.0
shall be construed as independent of any other provisions in this Agreement; and
the existence of any claim or cause of action of Employee against the
Corporation, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Corporation of said covenants.
15.3 The covenants contained in this Section 15.0 shall terminate and,
upon termination, shall be unenforceable and of no further legal force and
effect, in the event the Corporation, or any successor to the Corporation,
becomes insolvent, is liquidated or ceases for any reason to conduct business
operations for a continuous period of at least thirty (30) days.
15.4 The Corporation shall have the right to assign the aforesaid
covenants; and Employee agrees to remain bound by the terms of the covenants to
any and all subsequent purchaser and assignees of the assets and business of the
Corporation.
16.0 NON-INTERFERENCE WITH EMPLOYEES.
16.1 Employee convenants with the Corporation that employees of or
consultants to the Corporation and employees of and consultants to firms,
corporations or entities affiliated with the Corporation have, of necessity,
been exposed to and have acquired certain knowledge, understandings, and
know-how concerning the Corporation's business operations which is confidential
information and proprietary to the Corporation.
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16.2 In order to protect the Corporation's confidential information and
to promote and insure the continuity of the Corporation's contractual relations
with its employees and consultants, Employee covenants and agrees that for so
long as Employee holds any position or affiliation with the Corporation,
including service to the Corporation as an officer, director, employee,
consultant, agent or contractor, and for a period of twelve (12) months from the
date Employee ceases to hold any such position or status with the Corporation or
otherwise becomes disaffiliated with the Corporation, he will not directly or
indirectly, or permit or encourage other to directly or indirectly (i) interfere
in any manner whatsoever with the Corporation's contractual or other relations
with any or all of its employees or consultants, or (ii) induce or attempt to
induce any employee or consultant to the Corporation to cease performing
services for or on behalf of the Corporation, or (iii) solicit, offer to retain,
or retain, or in any other manner engage or employ the services of, any person
or entity who or which is retained or engaged by the Corporation, or any firm,
corporation or entity affiliated with the Corporation, as an employee,
consultant or agent.
16.3 In the Event any court of competent jurisdiction determines or
holds that all or any portion of the covenants contained in this Section 16.0
are unlawful, invalid, or unenforceable for any reasons, then the parties hereto
agree to modify the provisions of this Section 16.0 if and only to the extent
necessary to render the covenants herein contained enforceable and otherwise in
conformance with all legal requirements.
17.0 CLIENTS AND CUSTOMERS.
17.1 Employee covenants with the Corporation that the clients and
customers of the Corporation, both actual and contemplated, constitute actual
and prospective business relationships which are proprietary to the Corporation
and comprise, in part, the Corporation's confidential information and trade
secrets.
17.2 In order to protect the Corporation's proprietary rights and to
promote and ensure the continuity of the Corporation's contractual relations
with its customers and clients, Employee covenants and agrees that,
notwithstanding the provisions of Section 15.1 hereof, and for so long as
Employee holds any position or affiliation with the Corporation, including
service to the Corporation as an officer, director, employee, consultant, agent
or contractor, and for a period of twelve (12) months from the date Employee
ceases to hold any such position or status with the Corporation or otherwise
becomes disaffiliated with the Corporation, he will not directly or indirectly,
or permit or encourage others to directly or indirectly (i) interfere in any
manner whatsoever with the Corporation's contractual relations with any clients
or customers, or (ii) induce or attempt to induce any client or customer of the
Corporation to cease doing business with the Corporation.
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17.3 In the event any court of competent jurisdiction determines or
holds that all or any portions of the covenants contained in this Section 17.0
are unlawful, invalid or unenforceable for any reason, then the parties hereto
agree to modify the provisions of this Section 17.0 if and only to the extent
necessary to render the covenants herein contained enforceable and otherwise in
conformance with all legal requirements.
18.0 COVENANT TO RETAIN CONFIDENCES.
18.1 Employee understands that all information learned, known, made,
devised or developed concerning any of the Company's products and activities,
including, without limitation, any inventions, discoveries, improvements,
processes, formulas, computer programs (including their structure, sequence,
organization, coherence, look and feel), apparatus, equipment, customer and
client lists, marketing plans, mailing lists, art, graphics, display, research,
and the like used by the Corporation in connection with its business constitutes
the confidential information, proprietary information and trade secrets of the
Corporation. Employee covenants and agrees that he will not (except as required
in the course of his position with the Corporation), during the term hereof or
thereafter for a period of twelve (12) months, communicate or divulge to, or use
for the benefit of himself or any other person, firm, association, or
corporation, without the consent of the Corporation, any confidential
information or trade secrets possessed, owned, or used by the Corporation or its
affiliates that may be communicated to, acquired by, or learned of by the
Employee in the course of or as a result of his services with the Corporation.
For the purposes of this Section 18.1, confidential information of the
Corporation shall not include (i) any information developed by the Employee
independently of services performed by the Employee for the Corporation pursuant
to this Agreement; (ii) any information rightfully obtained by the Employee from
a third party without restriction; (iii) any information publicly available
other than through the fault or negligence of the Employee; (iv) any information
disclosed by the corporation to third parties without restriction; or (v)
information already known by the Employee prior to its disclosure by the
Corporation.
18.2 Employee will not use in the course of Employee's employment with
the Corporation, or disclose or otherwise make available to the Corporation, any
information, documents or other items which Employee may have received from any
other person or entity (including any prior employer), and which Employee is
prohibited from so using, disclosing or making available.
18.3 All records, files, memoranda, reports, price lists, customer
lists, drawings, plans, sketches, documents, prototypes, testing data,
equipment, electronically stored information on disk, tape or any other medium
or existing in computer memory transmitted by any means, including, but not
limited to, telephone or electronic data transmission and the like, relating to
the business of the Corporation or its affiliates, which Employee shall use or
prepare or come into contact with, shall remain the sole property of the
Corporation.
19.0 WORK PRODUCT.
19.1 All trade secrets, know-how, confidential information,
copyrightable material, inventions, discoveries, and improvements, including
computer programs (their structure, sequence, organization, coherence, look and
feel), whether patentable or unpatentable, copyrightable or uncopyrightable,
made, devised, discovered or reduced to practice by the Employee, whether by
himself or jointly with others, from the time of becoming an employee of the
Corporation until the termination of that status, shall be deemed work for hire
and shall be promptly disclosed in writing to the Corporation and are to redound
to the benefit of the Corporation and become and remain its sole and exclusive
property.
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19.2 By executing this Agreement, Employee hereby transfers and assigns
to the Corporation, or person, firms or corporations designated by the
Corporation, any or all of Employee's rights, title and interest in and to any
and all developments, inventions, computer programs, discoveries, improvements,
processes, devices, copyrights, patents and patent applications therefore, and
to execute at any and all times any and all instruments and do any and all acts
necessary or which the Corporation may deem desirable in connection with
conveying, transferring and assigning Employee's entire right, title and
interest in and to any inventions, discoveries, improvements, computer programs,
processes devices, copyrights, patent applications therefore or patents thereon
in any way related to the technology or trade secrets developed, discovered or
reduced to practice by Employee during the term of this Agreement, it being the
express understanding and agreement of the parties that any and all future
developments, inventions, and discoveries of Employee during the term hereof
shall be the property of the Corporation, or its assigns.
20.0 PATENTS AND COPYRIGHTS.
20.1 Employer shall cause to be filed United States and foreign patent
and/or copyright applications on each invention deemed to be patentable or
copyrightable and embodied in any technology developed and reduced to practice
during the term hereof which inure to the Corporation by virtue of the
provisions of Section 19.0 hereof.
20.2 The Corporation shall forfeit patent rights or copyrights to any
patentable or copyrightable technology developed by Employee during the term
hereof in any jurisdiction in which it fails to file patent or copyright
applications after a timely request by Employee. Employer shall provide to
Employee a copy of each application filed, and within six (6) months thereafter
Employee shall designated what, if any, foreign countries he desires
applications to be filed. Patent or copyright prosecution and maintenance shall
be done by an attorney to be selected by the Corporation and approved by
Employee, which approval shall not be unreasonably withheld. All reasonable
expense of filing, prosecution and maintenance of domestic and foreign patents
or copyrights and patent or copyright applications shall be borne by Employer.
20.3 Employer and Employee agree to forebear from, and not permit
others to make or permit any public disclosure of any of the patentable matter
prior to the application for a United States patent. All foreign patent
applications shall be made no later than one (1) year following the date of the
U.S. patent application.
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20.4 All patents shall be applied for in the name of Employee, as
inventor, and shall be assigned to the Corporation or its assigns. All
copyrights shall be registered in the name of the Corporation. The Employee
shall, upon demand, execute and deliver to the Corporation or its assigns such
documents or assignments as may be deemed necessary or advisable by counsel for
the Corporation or its assigns for filing in the appropriate patent offices to
evidence the assignment of the patent rights hereby granted.
21.0 REPRESENTATIONS OF EMPLOYEE. The Employee represents that, to the best of
his knowledge and belief, neither his affiliation with the Corporation, nor his
holding any position as officer, director, Employee, or consultant with the
Corporation, nor his ownership of common stock in the Corporation, nor his
performing any other services for the Corporation violates any presently
existing, valid and enforceable contract, agreement, commitment or other legal
relationship between Employee and any other person or entity.
22.0 ATTORNEYS' FEES. In the event there is any litigation or arbitration
between the parties concerning this Agreement, the successful party shall be
awarded reasonable attorneys' fees and litigation or arbitration costs,
including the attorneys' fees and costs incurred in the collection of any
judgment.
23.0 NOTICES. All notices required or permitted hereunder shall be sufficient if
delivered personally or mailed to the parties at the address set forth below or
at such other address as either party may designate in writing from time to
time. Any notice by mailing shall be effective 48 hours after it has been
deposited in the United States certified mail, return receipt requested, duly
addressed and with postage prepaid.
24.0 PARTIAL INVALIDITY. If any provisions of this Agreement are in violation of
any statute or rule of law of any state or district in which it may be sought to
be enforced, then such provisions shall be deemed null and void only to the
extent that they may be in violation thereof, but without invalidating the
remaining provisions.
25.0 BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the respective parties hereto, their heirs, personal representatives,
successors and assigns; provided, however, that Employee may not assign his
employment hereunder, and any assignment by Employee in violation of this
Agreement shall vest no rights in the purported assignee.
26.0 WAIVER. No waiver of any breach of any one of the agreements, terms,
conditions or covenants of this Agreement by the Employer or the Employee shall
be deemed to imply or constitute a waiver of any other agreement, term,
condition or covenant of this Agreement. The failure of either party to insist
on strict performance of any agreement, term, condition or covenant, herein set
forth, shall not constitute or be construed as a waiver of the rights of either
or the other thereafter to enforce any other default of such agreement, term,
condition or covenant; neither shall such failure to insist upon strict
performance be deemed sufficient grounds to enable either party hereto to forego
or subvert or otherwise disregard any other agreement, term, condition or
covenants of this Agreement.
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27.0 GOVERNING LAW. This Agreement and the rights and duties of the parties
shall be construed and enforced in accordance with the laws of the State of
Colorado.
28.0 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter thereof. There are no
representations, warranties, conditions or obligations except as herein
specifically provided. Any amendment or modification hereof must be in writing.
IN WITNESS WHEREOF, the parties to this Agreement have duly executed it
on the day and year first above written.
EMPLOYER:
EVERLERT, INC.
By: /s/ Xxxxxx Xxxxxx
------------------------
Xxxxxx Xxxxxx, Secretary/Treasurer
EMPLOYEE:
/s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx
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