Exhibit 10.12
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made effective the 18th day of April, 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 XXXXXXXX X. XXXX, 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 May 9, 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 Employee is entitled to severance equal to the average
monthly cash compensation (base salary and commissions) for the 120-day period.
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 Vice President of Sales of the Employer with such assignments, powers
and duties as are assigned or delegated to him by the President 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 Fifty-one Thousand Dollars ($51,000) per year. 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. Additionally, non-
refundable sales draws will be extended for six months equal to $4,250 per
month. After the initial six months, as new product is introduced, a mutually
agreeable commission structure will be established using the first 6 months as a
basis for the new plan, but without regard to minimum commission income if
adequate salable product exists.
B. The Employer will grant to the Employee an option to purchase
100,000 shares of its common stock at an option price determined by the
policies, guidelines, rules and regulations of the Vancouver Stock Exchange.
One fourth of such option shall vest on each of the four anniversaries of the
date of grant and shall expire seven (7) years from the date of grant. Given
40% or more of the company changes hands to one entity, all options vest at the
time of acquisition.
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
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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 the 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 within 120 days from 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 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 malfeasance,
convicted felony, theft, gross negligence or violation of any company policy,
the Employment Period and the Employee's salary and other rights under this
Agreement as an employee of the Employer, subject to 8C
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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 or advice to, or be engaged in a
business during such one-year period, where said business's primary products are
in direct competition with the primary products or services 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
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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.
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
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three (3) days after being mailed by registered or certified first-class mail,
postage prepaid, return receipt requested, if to the Employee at 0000 Xxxxxxxxx
Xxxxx, 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/ XXXX X. XXXXXXXX
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Name:
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Title:
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/s/ XXXXXXXX X. XXXX
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XXXXXXXX X. XXXX
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