Exhibit 10.12
AGREEMENT made as of the day of December, 1997 by and between Summa
Metals Corp., a Nevada corporation with its principal offices at 00000 Xxxxx
Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx Xxxxxx, XX 00000 (the "Company"), and Xxxx X.
Xxxxxxx whose address is 0000 Xxxx 00xx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000 (the
"Employee").
WITNESSETH:
WHEREAS, the Company desires to obtain the benefit of the services of
Employee, and Employee desires to render such services, on the terms and
conditions hereinafter set forth;
NOW, THEREFORE, the parties hereto, in
consideration of the premises and mutual covenants herein contained,
hereby agree as follows:
1. Upon the execution of this Agreement, all prior employment agreements,
whether written or oral, between Employee and the Company, or any of its
parents, subsidiaries, affiliates, or predecessor constituent corporations, are
terminated and are of no further force and effect.
2. Subject to the terms and conditions hereinafter set forth, the Company
hereby employs Employee, and Employee hereby enters into the employ of the
Company, or of any parent, subsidiary, or affiliate of the Company as the
Company shall from time to time select, for an employment term commencing on the
Effective Date of this Agreement as hereinafter provided, and terminating two
(2) years thereafter (the "Term of Employment").
3. This Agreement shall become effective on the date of the closing of the
minimum public offering of shares of the Company's Common stock ("the Effective
Date") , and shall continue for a period of two (2) years from such Effective
Date.
4. During the Term of Employment, Employee shall render and perform such
executive and managerial services as Vice President of Corporate and Investor
Relations for the Company, as may be assigned to him by or under the authority
of the Board of Directors of the Company. During the Term of Employment,
Employee shall hold such other offices of the Company or its subsidiaries to
which he may be appointed by the Board of Directors subject to the by-laws of
the Company and the direction and action of the Board of Directors; it being
understood and agreed that all policy in connection with the operations and
conduct of the business of the Company shall be set by the Board of Directors,
whose instructions in connection therewith shall be followed by Employee.
Employee shall devote such time as shall be reasonably required to perform his
duties as such Vice President of Corporate and Investor Relations for the
Company, and the Company acknowledges that Employee has other business and
employment agreements. Employee shall serve the Company faithfully and shall use
his best efforts to promote the interests of the Company. During the Term of
Employment, Employee agrees not to engage, directly or indirectly, in any
business which is competitive with the business now or hereafter conducted by
the Company, or by any parent, subsidiary, or affiliate of the Company, in the
capacity of proprietor, partner, joint venturer, stockholder, director, officer,
lender, manager, employee, consultant, advisor, or agent, or as a person
2
controlling such business; provided, however, that Employee may buy or sell
stock in any corporation which is traded on any stock exchange or over the
counter, except that Employee shall not purchase or sell more than one (1%)
percent of the outstanding stock of any corporation engaged in the same or
similar business to that of the Company or any parent, subsidiary, or affiliate
of the Company.
5. As full compensation for all services of Employee provided for herein,
including, without limiting the generality of the foregoing, all services to be
rendered by Employee as an officer or director of the company, or of any parent,
subsidiary, or affiliate of the Company, the Company will pay, or cause to be
paid to Employee, during the Term of Employment, and Employee will accept,
A.(i) for the first year of the Term of Employment, a salary at the rate of
$60,000, and;
(ii) for the second year of the Term of Employment, a salary at the rate of
$72,000.
B. Such salary will be paid in regular installments in accordance with the
Company's usual paying practices, but not less frequently than monthly. Such
payments will be subject to such deductions by the Company as the Company is
from time to time required to make pursuant to law, government regulations, or
order, or by agreement with or consent of Employee.
6. Employee shall be entitled to reimbursement by the Company for
reasonable expenses actually incurred by him on its behalf in the course of his
employment by the Company, upon the presentation by Employee, from time to time,
3
of an itemized account of such expenditures, together with said vouchers and
other receipts as the Company may require.
7. Employee shall be entitled to vacations in accordance with the Company's
prevailing policy for its operating executives, provided that such vacations do
not interfere with the business operations of the Company.
8. During the Term of Employment, if Employee shall be unable, for a period
of more than two (2) consecutive months or for periods aggregating more than
eight (8) weeks in any fifty-two (52) consecutive weeks, to perform the services
provided for herein as a result of illness or incapacity or a physical, mental,
or other disability of any nature, the Company, upon not less than ten (10) days
notice, may terminate Employee's employment hereunder. Employee shall be
considered unable to perform the services provided for herein if he is unable to
attend to the normal duties required of him. The Company shall pay to Employee,
or to his legal representatives, compensation as specified in Paragraph 5 hereof
to the end of the month in which termination occurs. Upon completion of the
termination payments provided for in this paragraph, all of the Company's
obligations to pay compensation under this Agreement shall cease.
9. Employee shall be entitled to participate in all group life insurance,
medical and hospitalization plans and pension and profit sharing plans as are
presently offered by the Company or
4
which may hereafter during the Term of Employment be offered by the Company
generally to its operating Executives.
10. Employee will not, at any time during or after the Term of Employment,
directly or indirectly disclose or furnish to any other person, firm, or
corporation any information relating to the Company or its parent, subsidiaries,
or affiliates with respect to technology of the Company's products, methods of
obtaining business, advertising products, obtaining customers or suppliers, or
any confidential or proprietary information acquired by employee during the
course of his employment by the Company or its parent, subsidiaries, or
affiliates.
11. As between Employee and the Company, all products, processes,
discoveries, materials, ideas, creations, inventions, and properties, whether or
not furnished by Employee or created, developed, invented or used in connection
with Employee's employment hereunder, or prior to this Agreement while employed
by the Company, which relate to the business of the Company, will be the sole
and absolute property of the Company for any and all purposes whatsoever, in
perpetuity, whether or not conceived, discovered, and/or developed during
regular working hours. Employee will not have, under this Agreement or
otherwise, any right, title or interest of any kind or nature whatsoever in or
to any such products, processes, discoveries, materials, ideas, creations,
inventions or properties.
12. The Employee represents and warrants to the Company that he is not
under any obligation of a contractual or other nature to any other party which
5
obligation is inconsistent or in conflict with this Agreement or which would
prevent, limit, or impair in any way the performance by Employee of his
obligations hereunder.
13. The parties hereto recognize that irreparable damage will result to the
Company and its business and properties if Employee fails or refuses to perform
his obligations under this Agreement and that the remedy at law for any such
failure or refusal will be inadequate. Accordingly, in addition to any other
remedies and damages available, the Company shall be entitled to injunctive
relief, and Employee may be specifically restrained from violating the terms and
conditions of this Agreement.
14. Commencing on the Effective Date, Employee is herewith granted an
option to purchase 900,000 shares of the Company's Common Stock at an exercise
price of $.001 per share. Such option may be exercisable by Employee at any time
during the term of this Agreement. The shares will be restricted shares and
contain the appropriate restrictive legend
15. Employee will execute and deliver all such other further instruments
and documents as may be necessary, in the opinion of the Company, to carry out
the intents and purposes of this Agreement and the transactions contemplated
hereby, and to confirm, assign, or convey to the Company any products,
processes, discoveries, materials, ideas, creations, inventions, properties
referred to in Paragraph 11 hereof, including the execution of all patent and
copyright applications.
6
16. This Agreement constitutes the entire agreement between the parties
hereto relating to the subject matter set forth herein and supersedes any prior
oral and/or written agreements, understandings, negotiations, or discussions of
the parties. There are no warranties, representations or agreements between the
parties in connection with the subject matter hereof, except as set forth or
referred to herein. No supplement, modification, waiver, or termination of this
Agreement or any provision hereof shall be binding unless executed in writing by
the parties to be bound thereby. Waiver of any of the provisions of this
Agreement shall not constitute a waiver of any other provision (whether or not
similar) , nor shall such waiver constitute a continuing waiver unless otherwise
specifically provided.
17. The failure of either party at any time to require performance by the
other of any provision hereof shall not affect in any way the full right to
require such performance at any time thereafter, nor shall the waiver by either
party of the breach of any provision hereof be taken or be held to be a waiver
of the provision itself.
18. Any notice or other communication required or permitted to be given
under or in connection with this Agreement shall be in writing, delivered in
person or by public telegram, or by mailing same, certified or registered mail,
postage prepaid, in an envelope addressed to the party to whom notice is to be
given, at the address given at the beginning of this Agreement, and shall be
effective upon receipt thereof. Each party shall be entitled to specify a
different address by giving notice as aforesaid to the other party.
7
19. The invalidity or unenforceability or any paragraph, term, or provision
hereof shall in no way affect the validity or enforceability or the remaining
paragraphs, terms, or provisions hereof. In addition, in any such event, the
parties agree that it is their intention and agreement that any such paragraph,
term or provision which is held or determined to be unenforceable as written
shall nonetheless be in force and binding to the fullest extent permitted by law
as though such paragraph, term or provision had been written in such a manner
and to such an extent as to be enforceable under the circumstance. Without
limiting the foregoing, with respect to any restrictive covenant contained
herein, if it is determined that any such provision is excessive as to duration
or scope, it is intended that it nevertheless shall be enforced for such shorter
duration, or with such narrower scope, as will render it enforceable.
20. All of the terms and provisions of this Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, transferees, successors, and assigns; except that
Employee shall have no right to assign any of his rights or obligations to any
other party.
21. This Agreement shall be governed and construed under the laws of the
State of Nevada. Each of the parties hereto consents to the jurisdiction of the
appropriate state and federal courts of Nevada for all purposes in connection
with this Agreement. Each of the parties hereto further consents that any
8
process or notice of motion or other application of either of said Courts or a
judge thereof, or any notice in connection with any proceedings hereunder, may
be served inside or outside the State of Nevada by registered or certified mail,
return receipt requested, or by personal service, provided a reasonable time for
appearance is allowed, or in such other manner as may be permissible under the
rules of said Courts.
22. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which, taken together, shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
entered into as of the date and year hereinabove first set forth.
SUMMA METALS CORP.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Xxxxxxx Xxxxxxx, President
/s/ Xxxx X. Xxxxxxx
--------------------------------
Xxxx X. Xxxxxxx
9
