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EXHIBIT 10.12
XXXXXXXX.XXX
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT is made this 13th day of April
2000, (the "Agreement") between XxxxXxxx.xxx ("XxxxXxxx.xxx" or the "Company"),
a Nevada corporation, and Xxxxx Xxxxxxx (the "Executive").
RECITALS
The Company desires to retain the services of Executive pursuant to the
terms of this Agreement.
STATEMENT OF AGREEMENT
In consideration of the foregoing, and of Executive's continued
employment, the parties agree as follows:
1. Employment. The Company hereby employs Executive and Executive
accepts such employment upon the terms and conditions hereinafter set forth to
become effective on execution of this Agreement (the "Effective Time").
2. Duties.
(a) Executive shall be employed: (i) to serve as Vice
President - Business Development of XxxxXxxx.xxx, subject to the authority and
direction of the Board of Directors of XxxxXxxx.xxx; and (ii) to perform such
other or additional duties and responsibilities as the Board of Directors of
XxxxXxxx.xxx may, from time to time, prescribe.
(b) So long as employed under this Agreement, Executive agrees
to devote full time and efforts exclusively on behalf of the Company and to
competently, diligently and effectively discharge all duties of Executive
hereunder. Executive shall not be prohibited from engaging in such personal,
charitable, or other nonemployment activities as do not interfere with full time
employment hereunder and which do not violate the other provisions of this
Agreement. Executive further agrees to comply fully with all reasonable policies
of the Company as are from time to time in effect.
3. Compensation. As full compensation for all services rendered to the
Company pursuant to this Agreement, in whatever capacity rendered, the Company
shall pay to Executive during the term hereof a minimum base salary at the rate
of $140,000 per year (the "Basic Salary"), payable bi-weekly or in other more
frequent installments, as determined by the Company. The Basic Salary thereafter
may be increased, but not decreased, from time to time, by the Board of
Directors in connection with reviews and increases of the salaries of other
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executives of the Company. Executive will be entitled to receive incentive
compensation pursuant to the terms of plans adopted by the Board of Directors
from time to time.
4. Business Expenses. The Company shall promptly pay directly, or
reimburse Executive for, all business expenses to the extent such expenses are
paid or incurred by Executive during the term of employment in accordance with
Company policy in effect from time to time and to the extent such expenses are
reasonable and necessary to the conduct by Executive of the Company's business
and properly substantiated.
5. Benefits. During the term of this Agreement and Executive's
employment hereunder, the Company shall provide to Executive such insurance,
vacation, sick leave and other like benefits as are provided to other executive
officers of the Company from time to time.
6. Term; Termination.
(a) Executive is employed by the Company "at will."
Executive's employment may be terminated at any time as provided in this Section
6. For purposes of this Section 6, "Termination Date" shall mean the date on
which any notice period required under this Section 6 expires or, if no notice
period is specified in this Section 6, the effective date of the termination
referenced in the notice.
(b) The Company may terminate Executive's employment without
cause upon giving 30 days' advance written notice to Executive. If Executive's
employment is terminated without cause under this Section 6(b), the Company will
pay Executive the earned but unpaid portion of Executive's Basic Salary and pro
rata portion of Executive's bonus, if any, through the Termination Date, and
will continue to pay Executive his Basic Salary prior to the Termination Date as
follows: (i) if this Agreement has been in effect for less than 12 months, for
the number of full months in which this Agreement was in effect prior to the
Termination Date; or (ii) if this Agreement has been in effect for 12 months or
longer, until the first anniversary of the Termination Date (the "Severance
Period").
(c) The Company may terminate Executive's employment upon a
determination by the Company that "Good Cause" exists for Executive's
termination and the Company serves written notice of such termination upon
Executive. As used in this Agreement, the term Good Cause shall refer only to
any one or more of the following grounds:
(i) commission of an act of dishonesty, including,
but not limited to, misappropriation of funds or any property of the
Company;
(ii) engagement in activities or conduct injurious to
the best interests or reputation of the Company;
(iii) refusal to perform his assigned duties and
responsibilities;
(iv) gross insubordination by the Executive;
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(v) the clear violation of any of the material terms
and conditions of this Agreement or any written agreement or agreements
the Executive may from time to time have with the Company (following
30-days' written notice from the Company specifying the violation and
Executive's failure to cure such violation within such 30-day period);
(vi) the Executive's substantial dependence, as
determined by the Board of Directors of the Company, on alcohol, or any
narcotic drug or other controlled or illegal substance; or
(vii) commission of a crime which is a felony, a
misdemeanor involving an act of moral turpitude, or a misdemeanor
committed in connection with his employment by the Company which causes
the Company a substantial detriment.
In the event of a termination under this Section 6(c), the Company will pay
Executive the earned but unpaid portion of Executive's Basic Salary through the
Termination Date. If any determination of substantial dependence under Section
6(c)(vi) is disputed by the Executive, the parties hereto agree to abide by the
decision of a panel of three physicians appointed in the manner as specified in
Section 6(d) of this Agreement.
(d) Executive's employment shall terminate upon the death or
permanent disability of Executive. For purposes hereof, "permanent disability,"
shall mean the inability of the Executive, as determined by the Board of
Directors of XxxxXxxx.xxx, by reason of physical or mental illness to perform
the duties required of him under this Agreement for more than 180 days in any
one year period. Successive periods of disability, illness or incapacity will be
considered separate periods unless the later period of disability, illness or
incapacity is due to the same or related cause and commences less than 180 days
from the ending of the previous period of disability. Upon a determination by
the Board of Directors of XxxxXxxx.xxx that Executive's employment shall be
terminated under this Section 6(d), the Board of Directors shall give Executive
30 days' prior written notice of the termination. If a determination of the
Board of Directors under this Section 6(d) is disputed by Executive, the parties
agree to abide by the decision of a panel of three physicians. XxxxXxxx.xxx will
select a physician, Executive will select a physician and the physicians
selected by XxxxXxxx.xxx and Executive will select a third physician. Executive
agrees to make himself available for and submit to examinations by such
physicians as may be directed by the Company. Failure to submit to any
examination shall constitute a breach of a material part of this Agreement.
(e) The Executive may terminate his employment for Good Reason
(as defined below) upon giving 30 days advance written notice to the Company. If
Executive's employment is terminated with Good Reason under this Section 6(e),
the Company will pay Executive the earned but unpaid portion of Executive's
Basic Salary and incentive compensation, if any, through the Termination Date,
and will continue to pay Executive his Basic Salary and any incentive
compensation under and consistent with plans adopted by the Company prior to the
Termination Date until the first anniversary of the Termination Date (the
"Severance Period"), and the Company will provide executive level outplacement
services by a firm selected and contracted by the Company for up to six months
following the Termination Date (the "Outplacement Services"). As used in this
Agreement, the term "Good Reason"
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means: without Executive's written consent, a change in status, position or
responsibilities which, in the Executive's reasonable judgment, does not
represent a promotion from existing status, position or responsibilities; the
assignment of any duties or responsibilities which, in the Executive's
reasonable judgment, are inconsistent with such status, position or
responsibilities as of the Effective Date; or the failure of the Company to
obtain a satisfactory agreement from any successor or assign of the Company to
assume and agree to perform this Agreement.
(f) The Executive may terminate his employment for any reason
upon giving 30 days' advance written notice to the Company. If Executive's
employment is so terminated under this Section 6(f), the Company will pay
Executive the earned but unpaid portion of Executive's Basic Salary through the
Termination Date and any incentive compensation under and consistent with plans
adopted by the Company prior to the Termination Date.
7. Indemnity.
(a) Subject only to the exclusions set forth in Section 7(b)
hereof, the Company hereby agrees to hold harmless and indemnify Executive
against any and all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by Executive in
connection with any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (excluding an action by
or in the right of the Company) to which Executive is, was or at any time
becomes a party, or is threatened to be made a party, by reason of the fact that
Executive is, was or at any time becomes a director, officer, employee or agent
of the Company, or is or was serving or at any time serves at the request of the
Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise.
(b) No indemnity pursuant to Section 7(a) hereof shall be
paid by the Company:
(i) except to the extent the aggregate losses to be
indemnified hereunder exceed the amount of such losses for which
Executive is indemnified pursuant to any directors and officers
liability insurance purchased and maintained by the Company;
(ii) in respect to remuneration paid to Executive if
it shall be determined by a final judgment or other final adjudication
that such remuneration was in violation of law;
(iii) on account of any suit in which judgment is
rendered against Executive for an accounting of profits made from the
purchase or sale by Executive of securities of the Company pursuant to
the provisions of Section 16(b) of the Securities Exchange Act of 1934
and amendments thereto or similar provisions of any federal, state or
local statutory law;
(iv) on account of Executive's breach of any
provision of this Agreement;
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(v) on account of Executive's act or omission being
finally adjudged to involve intentional misconduct, a knowing violation
of law, or grossly negligent conduct; or
(vi) if a final decision by a Court having
jurisdiction in the matter shall determine that such indemnification is
not lawful.
(c) All agreements and obligations of the Company contained
herein shall continue during the period Executive is a director, officer,
employee or agent of the Company (or is or was serving at the request of the
Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise) and shall continue
thereafter so long as Executive shall be subject to any possible claim or
threatened, pending or completed action, suit or proceeding, whether civil,
criminal or investigative, by reason of the fact that Executive was an officer
or director of the Company or serving in any other capacity referred to herein.
(d) Promptly after receipt by Executive of notice of the
commencement of any action, suit or proceeding, Executive will, if a claim in
respect thereof is to be made against the Company under this Section 7, notify
the Company of the commencement thereof; but the omission so to notify the
Company will not relieve it from any liability which it may have to Executive
otherwise than under this Section 7. With respect to any such action, suit or
proceeding as to which Executive notifies the Company under this Section 7(d):
(i) The Company will be entitled to participate
therein at its own expense.
(ii) Except as otherwise provided below, to the
extent that it may wish, the Company jointly with any other
indemnifying party similarly notified will be entitled to assume the
defense thereof, with counsel selected by the Company. After notice
from the Company to Executive of its election so to assume the defense
thereof, the Company will not be liable to Executive under this Section
7 for any legal or other expenses subsequently incurred by Executive in
connection with the defense thereof other than reasonable costs of
investigation or as otherwise provided below. Executive shall have the
right to employ his counsel in such action, suit or proceeding but the
fees and expenses of such counsel incurred after notice from the
Company of its assumption of the defense thereof shall be at the
expense of Executive, unless (A) the employment of counsel by Executive
has been authorized by the Company, or (B) the Company shall not in
fact have employed counsel to assume the defense of such action, in
each of which cases the fees and expenses of counsel shall be at the
expense of the Company. The Company shall not be entitled to assume the
defense of any action, suit or proceeding brought by or on behalf of
the Company.
(iii) The Company shall not be liable to indemnify
Executive under this Agreement for any amounts paid in settlement of
any action or claim effected without its written consent. The Company
shall not settle in any manner which would impose any
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penalty or limitation on Executive without Executive's written consent.
Neither the Company nor Executive will unreasonably withhold their
consent to any proposed settlement.
(e) Executive agrees that Executive will reimburse the Company
for all customary and reasonable expenses paid by the Company in defending any
civil or criminal action, suit or proceeding against Executive in the event and
only to the extent that it shall be ultimately determined that Executive is not
entitled to be indemnified by the Company for such expenses under the provisions
of Nevada law, federal securities laws, the Company's By-laws or this Agreement.
8. Assignment. This Agreement is personal to Executive and Executive
may not assign or delegate any of his rights or obligations hereunder. Subject
to the foregoing, this Agreement shall be binding upon and inure to the benefit
of the respective parties hereto, their heirs, executors, administrators,
successors and assigns.
9. Waiver. The waiver by either party hereto of any breach or violation
of any provision of this Agreement by the other party shall not operate as or be
construed to be a waiver of any subsequent breach by such waiving party.
10. Notices. Any and all notices required or permitted to be given
under this Agreement will be sufficient and deemed effective three (3) days
following deposit in the United States mail if furnished in writing and sent by
certified mail to Executive at:
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and to the Company at:
XxxxXxxx.xxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Chief Executive Officer
with a copy to:
Xxxx X. Xxxxxxx
Porter, Wright, Xxxxxx & Xxxxxx LLP
00 X. Xxxx Xx.
Xxxxxxxx, XX 00000
11. Governing Law. This Agreement shall be interpreted, construed and
governed according to the laws of the State of New York.
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12. Amendment. This Agreement may be amended in any and every respect
only by agreement in writing executed by both parties hereto.
13. Section Headings. Section headings contained in this Agreement are
for convenience only and shall not be considered in construing any provision
hereof.
14. Entire Agreement. With the exception of the Confidentiality,
Assignment and Noncompetition Agreement of even date herewith, and the
Executive's stock option agreements with the Company, this Agreement terminates,
cancels and supersedes all previous employment or other agreements relating to
the employment of Executive with the Company or any predecessor, written or
oral, and this Agreement contains the entire understanding of the parties with
respect to the subject matter of this Agreement. This Agreement was fully
reviewed and negotiated on behalf of each party and shall not be construed
against the interest of either party as the drafter of this Agreement. EXECUTIVE
ACKNOWLEDGES THAT, BEFORE SIGNING THIS AGREEMENT, HE HAS READ THE ENTIRE
AGREEMENT AND HAS THIS DAY RECEIVED A COPY HEREOF.
15. Severability. The invalidity or unenforceability of any one or more
provisions of this Agreement shall not affect the validity or enforceability of
any other provisions of this Agreement or parts thereof.
16. Survival. Sections 6 and 7 of this Agreement and this Section 16
shall survive any termination or expiration of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
EXECUTIVE:
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
XXXXXXXX.XXX
By: /s/ Xxxxxxxx Xxxxx
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Its: COB
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