EXHIBIT 10.11
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement") dated as of June 13, 1999 (the
"Effective Date"), between XXXXXXXXXX.XXX, INC. (the "Company"), a Delaware
corporation, and WILLIAM GALINE (the "Employee").
WHEREAS, the Company wishes to employ the Employee to render services for
the Company on the terms and conditions set forth in this Agreement, and the
Employee wishes to be retained and employed by the Company on such terms and
conditions.
NOW, THEREFORE, in consideration of the premises, the mutual agreements set
forth below and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties agree as follows:
1. Employment. The Company hereby employs the Employee, and the Employee accepts
such employment and agrees to perform services for the Company, for the period
and upon the other terms and conditions set forth in this Agreement.
2. Term. The term of the Employee's employment shall be for a term of three
years commencing on June 14, 1999 and terminating on June 13, 2002; provided,
however, that this Agreement may be terminated at an earlier date in accordance
with Section 9 of this Agreement or upon (i) three months written notice by the
Company during the first year of this term or (ii) six months written notice
during the second year or third year of this term. The Company reserves the
right to pay Employee in lieu of said notice.
3. Position and Duties.
A. Service with Company. During the term of the Employee's employment, the
Employee agrees to perform such reasonable employment duties as set forth in
Exhibit A or as the Board of Directors or the Chief Executive Officer shall
assign to him from time to time. The Employee also agrees to serve, for any
period for which he is elected, as an officer or director of the Company;
provided, however, that the Employee shall not be entitled to any additional
compensation for serving as an officer or director.
B. Performance of Duties. The Employee agrees to serve the Company
faithfully and to the best of his ability and to devote his full time, attention
and efforts to the business and affairs of the Company during his employment by
the Company. The Employee hereby confirms that he is under no contractual
commitments inconsistent with his obligations set forth in this Agreement and
that during the term of this Agreement, he will not render or perform services
for any other corporation, firm, entity or person which are inconsistent with
the provisions of this Agreement, unless Employee obtains written prior approval
from the Board of Directors. While he remains employed by the Company, the
Employee may participate in reasonable charitable activities and personal
investment activities so long as such activities do not interfere with the
performance of his obligations under this Agreement.
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4. Compensation.
A. Base Salary. As compensation in full for all services to be rendered by
the Employee under this Agreement, the Company shall pay to the Employee a base
salary as set forth in Exhibit A, less deductions and withholdings, which salary
shall be paid on a monthly basis in arrears in accordance with the Company's
normal payroll procedures and policies. The compensation payable to the Employee
during each year after the first year of the Employee's employment shall be
established according to the Company's then current practices and policies
regarding compensation increases and performance reviews.
B. Incentive Compensation. In addition to the base salary, the Employee
shall be eligible to participate in any bonus or incentive compensation plans
that may be established by the Board of Directors of the Company from time to
time applicable to the Employee, according to the terms of those plans.
C. Participation in Benefit Plans. While he is employed by the Company, the
Employee shall also be eligible to participate in all employee health and
welfare benefit plans or programs (including vacation time) of the Company to
the extent that the Employee meets the requirements for each individual plan.
The Company provides no assurance as to the adoption or continuance of any
particular employee benefit plan or program, and the Employee's participation in
any such plan or program shall be subject to the provisions, rules and
regulations applicable thereto.
D. Expenses. The Company will pay or reimburse the Employee for all
reasonable and necessary out-of-pocket expenses incurred by him in the
performance of his duties under this Agreement, subject to the Company's normal
policies for expense verification and reimbursement.
E. Issuance of Stock Option. Concurrently with the execution of this
Agreement, the Company is granting to the Employee an option to purchase up to
125,000 shares of the Company's common stock, pursuant to the Company's 1999
Stock Option Plan. Such option shall be subject to the vesting schedule and
terms and conditions set forth in the form of stock option agreement attached as
Exhibit A hereto and in the Company's Stock Option Plan..
(1) Vesting Upon "Change of Control.
(a). "Change of Control" Defined. A "Change of Control" shall be
deemed to have occurred if the conditions set forth in any one of
the following paragraphs shall have been satisfied:
(i) Any "person" (as such term is used in Section 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) is or becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of Pawnbroker (not including in
the securities beneficially owned by such person any
securities acquired directly from Pawnbroker or its
affiliates) representing fifty percent (50%) or
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more of the combined voting power of Pawnbroker's then
outstanding securities; provided that the term "person" for
purposes of this subsection shall exclude Pawnbroker; any
trustee or other fiduciary holding securities under an
employee benefit plan of Pawnbroker; any company owned,
directly or indirectly, by the stockholders of Pawnbroker in
substantially the same proportions as their ownership of the
stock of Pawnbroker; or
(ii) The stockholders of Pawnbroker approve a merger or
consolidation of Pawnbroker with any other corporation or
other business entity, other than (a) a merger or
consolidation which would result in the voting securities of
Pawnbroker outstanding immediately prior thereto continuing
to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity),
in combination with the ownership of any trustee or other
fiduciary holding securities under an employee benefit plan
of Pawnbroker, at least seventy-five percent (75%) of the
combined voting power of the voting securities of Pawnbroker
or such surviving entity outstanding immediately after such
merger or consolidation. or (b) a merger or consolidation
effected to implement a recapitalization of Pawnbroker (or
similar transaction) in which no person acquires more than
fifty percent (50%) of the combined voting power of
Pawnbroker's then outstanding securities; or
(iii) The stockholders of Pawnbroker approve a plan of
complete liquidation of Pawnbroker or an agreement for the
sale or disposition by Pawnbroker of all or substantially
all Pawnbroker's assets.
(b) Vesting of the Options Upon Change of Control. Upon a Change
of Control of Pawnbroker and so long as Employee is a full-time
employee of Company, the Options granted to the Employee as of
the effective date of the Change of Control shall be deemed
immediately fully vested and may be exercised by Employee
pursuant to this Agreement and the Plan.
(10) Termination without cause. Should Company terminate Employee
without cause during the term of this Agreement, then the stock
options, and Grants that would have been awarded at the next
anniversary date from the date of termination, as set forth in
subsection C (2) above, shall vest and become immediately exercisable.
For example, if Employee is terminated in the third month of his
second year of this Agreement, then Employee shall be treated as if he
completed the second year of employment and would therefore be
entitled to exercise the stock option available for the end of the
second year of his employment.
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(11) Securities Laws Restrictions. Options will be exercised and
common stock issued only upon compliance with the Securities Act of
1933, as amended, and any other applicable state and federal
securities law.
F. Tax Indemnification. Employee specifically acknowledges and agrees
that Company has made no representations to him regarding the tax
consequences of any amounts received by him or for his benefit
pursuant to this Agreement. In consideration for the mutual promises
and agreements contained herein, and for other valuable consideration,
Employee agrees to pay all federal or state taxes, if any, which are
required by law to be paid with respect to this Agreement, save and
except those amounts withheld by Company in satisfaction of such taxes
as provided in Section 5.A above. Employee further agrees to indemnify
and hold Company, its predecessors, officers, directors, employees,
attorneys, representatives, successors and assigns harmless from any
claims, demands, deficiencies, levies, assessments, executions,
judgments or recoveries by any governmental entity against Company, or
any of the foregoing persons or entities, for any amounts claimed due
on account of this Agreement or pursuant to claims made under any
federal or state tax laws, and any costs, expenses or damages
sustained by them by reason of any such claims, including any amounts
paid by Company, its predecessors, officers, directors, employees,
attorneys, representatives, successors and assigns as taxes,
attorneys' fees, deficiencies, levies, assessments, fines, penalties,
interest or otherwise.
5. Confidential Information. Except as permitted or directed by the Company's
Board of Directors, during the term of his employment or at any time thereafter,
the Employee shall not divulge, furnish or make accessible to anyone or use in
any way (other than in the ordinary course of the business of the Company) any
confidential information of the Company that the Employee has acquired or become
acquainted with or will acquire or become acquainted with prior to the
termination of the period of his employment by the Company (including employment
by the Company or any affiliated companies prior to the date of this Agreement)
whether developed by himself or by others, concerning any trade secrets,
confidential or secret designs, processes, formulae, plans, devices or material
(whether or not patented or patentable) directly or indirectly useful in any
aspect of the business of the Company, any customer or supplier lists of the
Company, any confidential or secret development or research work of the Company,
or any other confidential information or secret aspects of the business of the
Company. The Employee acknowledges that the above-described knowledge or
information constitutes a unique and valuable asset of the Company and
represents a substantial investment of time and expense by the Company, and that
any disclosure or other use of such knowledge or information other than for the
sole benefit of the Company would be wrongful and would cause irreparable harm
to the Company. Both during and after the term of his employment, the Employee
will refrain from any acts or omissions that would reduce the value of such
knowledge or information to the Company. The foregoing obligations of
confidentiality shall not apply to any knowledge or information that is now
published or which subsequently becomes generally publicly known in
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the form in which it was obtained from the Company, other than as a direct or
indirect result of the breach of this Agreement by the Employee.
6. Ventures. If, during the term of his employment the Employee is engaged in or
associated with the planning or implementing of any project, program or venture
involving the Company and a third party or parties, all rights in such project,
program or venture shall belong to the Company. Except as approved by the
Company's Board of Directors and subject to an express written agreement, the
Employee shall not be entitled to any interest in such project, program or
venture or to any commission, finder's fee or other compensation in connection
therewith other than the compensation to be paid to the Employee as provided in
this Agreement. The Employee shall not acquire any kind of interest, direct or
indirect, in any vendor or customer of the Company.
7. Noncompetition Covenant.
A. Agreement Not to Compete. During the term of his employment with the
Company he shall not, directly or indirectly, engage in competition with the
Company in any manner or capacity (e.g., as an advisor, principal, agent,
partner, officer, director, stockholder, employee, member of any association or
otherwise) in any phase of the business which the Company is conducting during
the term of this Agreement, including the design, development, manufacture,
distribution, marketing, leasing or selling of accessories, devices or systems
related to the products or services being sold by the Company or hire any
current or former employee of the Company.
B. Geographic Extent of Covenant. The obligations of the Employee under
Section 7A shall apply to any geographic area in which the Company (i) has
engaged in business during the term of this Agreement through production,
promotional, sales or marketing activity, or otherwise, or (ii) has otherwise
established its goodwill, business reputation or any customer or supplier
relations.
C. Limitation of Covenant. Ownership by the Employee, as a passive
investment, of less than two percent of the outstanding shares of capital stock
of any corporation listed on a national securities exchange or publicly traded
on the NYSE or Nasdaq shall not constitute a breach of this Section 7.
D. Indirect Competition. The Employee will not, directly or indirectly,
assist or encourage any other person in carrying out, directly or indirectly,
any activity that would be prohibited by the above provisions of this Section 7
if such activity were carried out by the Employee, either directly or
indirectly. In particular the Employee agrees that he will not, directly or
indirectly, induce any employee of the Company to carry out, directly or
indirectly, any such activity.
E. Acknowledgment. The Employee agrees that the restrictions and agreements
contained in this Section 7 are reasonable and necessary to protect the
legitimate interests of the Company and that any violation of this Section 7
will cause substantial and irreparable harm to the Company that would not be
quantifiable and for which no adequate remedy would exist at law and that the
Company has all the rights provided in Section 10B.
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F. Blue Pencil Doctrine. If the duration or geographical extent of, or
business activities covered by, this Section 7 are in excess of what is valid
and enforceable under applicable law, then such provision shall be construed to
cover only that duration, geographical extent or activities that are valid and
enforceable, but only within the jurisdiction under whose law this Section 7 is
not enforceable to the full extent of its terms. In all other jurisdictions,
this Section 7 will be enforceable to the full extent of its terms. The Employee
acknowledges the uncertainty of the law in this respect and expressly stipulates
that this Agreement be given the construction which renders its provisions valid
and enforceable to the maximum extent (not exceeding its express terms) possible
under applicable law.
8. Patent and Related Matters.
A. Disclosure and Assignment. The Employee will promptly disclose in
writing to the Company complete information concerning each and every invention,
discovery, improvement, device, design, apparatus, practice, process, method or
product, whether patentable or not, made, developed, perfected, devised,
conceived or first reduced to practice by the Employee, either solely or in
collaboration with others, during the term of this Agreement, or within six
months thereafter, whether or not during regular working hours, relating either
directly or indirectly to the business, products, practices or techniques of the
Company ("Developments"). The Employee, to the extent that he has the legal
right to do so, hereby acknowledges that any and all of the Developments are the
property of the Company and hereby assigns and agrees to assign to the Company
any and all of the Employee's right, title and interest in and to any and all of
the Developments. At the request of the Company, the Employee will confer with
the Company and its representatives for the purpose of disclosing all
Developments to the Company as the Company shall reasonably request during the
period ending one year after termination of the Employee's employment with the
Company.
B. Future Developments. As to any future Developments made by the Employee
that relate to the business, products or practices of the Company and that are
first conceived or reduced to practice during the term of this Agreement, or
within six months thereafter, but which are claimed for any reason to belong to
an entity or person other than the Company, the Employee will promptly disclose
the same in writing to the Company and shall not disclose the same to others if
the Company, within 20 days thereafter, shall claim ownership of such
Developments under the terms of this Agreement. If the Company makes no such
claim, the Employee hereby acknowledges that the Company has made no promise to
receive and hold in confidence any such information disclosed by the Employee.
C. Limitation on Sections 8A and 8B. In compliance with California Labor
Code section 2872 or other applicable law, the provisions of Section 8A and 8B
shall not apply to any Development that qualifies fully under the provisions of
California Labor Code Section 2870, meeting the following conditions:
(1) such Development was developed entirely on the Employee's own
time;
(2) such Development was made without the use of any Company
equipment, supplies, facility or trade secret information;
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(3) such Development does not relate (i) directly to the business of
the Company or (ii) to the Company's actual or demonstrably anticipated
research or development; and
(4) such Development does not result from any work performed by the
Employee for the Company.
D. Assistance of the Employee. Upon request and without further
compensation therefor, but at no expense to the Employee, the Employee will do
all lawful acts, including but not limited to, the execution of papers and
lawful oaths and the giving of testimony, that in the opinion of the Company,
may be necessary or desirable in obtaining, sustaining, reissuing, extending and
enforcing United States and foreign copyrights and Letters Patent, including but
not limited to, design patents, on the Developments, and for perfecting,
affirming and recording the Company's complete ownership and title thereto, and
to cooperate otherwise in all proceedings and matters relating thereto. Employee
acknowledges that this obligation continues after the termination or expiration
of this Agreement.
E. Records. The Employee will keep complete, accurate and authentic
accounts, notes, data and records of the Developments in the manner and form
requested by the Company. Such accounts, notes, data and records shall be the
property of the Company, and, upon its request, the Employee will promptly
surrender same to it or, if not previously surrendered upon its request or
otherwise, the Employee will surrender the same, and all copies thereof, to the
Company upon the conclusion of his employment.
F. Obligations, Restrictions and Limitations. The Employee understands that
the Company may enter into agreements or arrangements with agencies of the
United States Government, and that the Company may be subject to laws and
regulations which impose obligations, restrictions and limitations on it with
respect to inventions and patents which may be acquired by it or which may be
conceived or developed by employees, consultants or other agents rendering
services to it. The Employee shall be bound by all such obligations,
restrictions and limitations applicable to any such invention conceived or
developed by him while he is employed by the Company and shall take any and all
further action which may be required to discharge such obligations and to comply
with such restrictions and limitations.
G. Copyrightable Material. All right, title and interest in all
copyrightable material that the Employee shall conceive or originate, either
individually or jointly with others, and which arise out of the performance of
this Agreement, will be the property of the Company and are by this Agreement
assigned to the Company along with ownership of any and all copyrights in the
copyrightable material. Upon request and without further compensation therefor,
but at no expense to the Employee, the Employee shall execute all papers and
perform all other acts necessary to assist the Company to obtain and register
copyrights on such materials in any and all countries. Where applicable, works
of authorship created by the Employee for the Company in performing his
responsibilities under this Agreement shall be considered "works made for hire,"
as defined in the U.S. Copyright Act.
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H. Know-How and Trade Secrets. All know-how and trade secret information
conceived or originated by the Employee that arises out of the performance of
his obligations or responsibilities under this Agreement or any related material
or information shall be the property of the Company, and all rights therein are
by this Agreement assigned to the Company.
9. Termination of Employment.
A. Grounds for Termination. The Employee's employment shall terminate prior
to the expiration of the initial term set forth in Section 2 or any extension
thereof in the event that at any time:
(1) The Employee dies,
(2) The Employee becomes "disabled," so that he cannot perform the
essential functions of his position with or without reasonable
accommodation,
(3) The Board of Directors of the Company elects to terminate this
Agreement for "cause" and notifies the Employee in writing of such
election,
(4) The Board of Directors of the Company elects to terminate this
Agreement without "cause" and notifies the Employee in writing of such
election, or
(5) The Employee elects to terminate this Agreement voluntarily and
notifies the Company in writing of such election.
If this Agreement is terminated pursuant to clause (1), (2) or (3) of this
Section 9A, such termination shall be effective immediately. If this Agreement
is terminated pursuant to clause (4) or (5) of this Section 9A, such termination
shall be effective 30 days after delivery of the notice of termination. The
Company reserves the right to pay Employee in lieu of said notice.
B. "Cause" Defined. "Cause" means:
(1) The Employee has breached the provisions of Section 5, 7 or 8 of
this Agreement in any material respect,
(2) The Employee has engaged in willful and material misconduct,
including willful and material failure to perform the Employee's duties as
an officer or employee of the Company and has failed to cure such default
within 30 days after receipt of written notice of default from the Company,
(3) The Employee has committed fraud, misappropriation or embezzlement
in connection with the Company's business, or
(4) The Employee has been convicted or has pleaded nolo contendere to
criminal misconduct (except for parking violations and occasional minor
traffic violations).
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In the event that the Company terminates the Employee's employment for
"cause" pursuant to clause (2) of this Section 9B and the Employee objects in
writing to the Board's determination that there was proper "cause" for such
termination within 20 days after the Employee is notified of such termination,
the matter shall be resolved by arbitration in accordance with the provisions of
Section 10A. If the Employee fails to object to any such determination of
"cause" in writing within such 20-day period, he shall be deemed to have waived
his right to object to that determination. If such arbitration determines that
there was not proper "cause" for termination, such termination shall be deemed
to be a termination pursuant to clause (4) of Section 9A and the Employee's sole
remedy shall be to receive the wage continuation benefits contemplated by
Section 9F.
C. Effect of Termination Notwithstanding any termination of this Agreement,
the Employee, in consideration of his employment hereunder to the date of such
termination, shall remain bound by the provisions of this Agreement which
specifically relate to periods, activities or obligations upon or subsequent to
the termination of the Employee's employment.
D. "Disabled" Defined. "Disabled" means any mental or physical condition
that meets the definition of a "disability" under the Americans with
Disabilities Act and any applicable state statute, and renders the Employee
unable to perform the essential functions of his position, with or without
reasonable accommodation, for a period in excess of six (6) months.
E. Surrender of Records and Property. Upon termination of his employment
with the Company, the Employee shall deliver promptly to the Company all
records, manuals, books, blank forms, documents, letters, memoranda, notes,
notebooks, reports, data, tables, calculations or copies thereof that relate in
any way to the business, products, practices or techniques of the Company, and
all other property, trade secrets and confidential information of the Company,
including, but not limited to, all documents that in whole or in part contain
any trade secrets or confidential information of the Company, which in any of
these cases are in his possession or under his control.
F. Salary Continuation. If the Employee's employment by the Company is
terminated by the Company pursuant to clause (2) or (4) of Section 9A, the
Company shall continue to pay to the Employee his base salary (less any payments
received by the Employee from any disability income insurance policy provided to
him by the Company), shall allow continued stock option vesting, and shall
continue to provide health insurance benefits for the Employee for three months,
provided Employee executes a release of claims in a form acceptable to the
Company. If this Agreement is terminated pursuant to clauses (1), (3) or (5) of
Section 9A, the Employee's right to base salary and benefits shall immediately
terminate, except as may otherwise be required by applicable law.
In either event, if the Employee's employment by the Company terminates
within six months of the end of any fiscal year of the Company, the Employee
shall also be entitled to receive a pro rata portion (based on the number of
days of employment during that fiscal year) of any bonus payment that would have
been payable to him for that fiscal year pursuant to Section 4B if the Employee
had been in the employ of the Company for the full fiscal year. No bonus will be
payable to the Employee with respect to any fiscal year in which the Employee
was
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employed by the Company for less than six months or with respect to any fiscal
year after the fiscal year in which the Employee's employment terminated.
10. Settlement of Disputes.
A. Arbitration. Except as provided in Section 10B, any claims or disputes
of any nature between the Company and the Employee arising from or related to
the performance, breach, termination, expiration, application or meaning of this
Agreement or any matter relating to the Employee's employment and the
termination of that employment by the Company shall be resolved exclusively by
arbitration in Washoe County, Nevada, in accordance with the applicable rules of
the American Arbitration Association. In the event of submission of any dispute
to arbitration, each party shall, not later than 30 days prior to the date set
for hearing, provide to the other party and to the arbitrator(s) a copy of all
exhibits upon which the party intends to rely at the hearing and a list of all
persons each party intends to call at the hearing. The fees of the arbitrator(s)
and other costs incurred by the Employee and the Company in connection with such
arbitration shall be paid by the party that is unsuccessful in such arbitration.
The decision of the arbitrator(s) shall be final and binding upon both
parties. Judgment of the award rendered by the arbitrator(s) may be entered in
any court of competent jurisdiction.
B. Resolution of Certain Claims--Injunctive Relief. Section 10A shall have
no application to claims by the Company asserting a violation of Section 5, 7, 8
or 9E or seeking to enforce, by injunction or otherwise, the terms of Section 5,
7, 8 or 9E. Such claims may be maintained by the Company in a lawsuit subject to
the terms of Section 10C. The Employee acknowledges that it would be difficult
to fully compensate the Company for damages resulting from any breach by him of
the provisions of this Agreement. Accordingly, the Employee agrees that, in
addition to, but not to the exclusion of any other available remedy, the Company
shall have the right to enforce the provisions of Sections 5, 7, 8 and 9E by
applying for and obtaining temporary and permanent restraining orders or
injunctions from a court of competent jurisdiction without the necessity of
filing a bond therefor, and without the necessity of proving actual damages, and
the Company shall be entitled to recover from the Employee its reasonable
attorneys' fees and costs in enforcing the provisions of Sections 5, 7, 8 and
9E.
C. Venue. Any action at law, suit in equity or judicial proceeding arising
directly, indirectly, or otherwise in connection with, out of, related to or
from this Agreement, or any provision hereof, shall be litigated only in the
courts of the State of Nevada, County of Washoe. The Employee and the Company
consent to the jurisdiction of such courts over the subject matter set forth in
Section 10B. The Employee waives any right the Employee may have to transfer or
change the venue of any litigation brought against the Employee by the Company.
11. Miscellaneous.
A. Entire Agreement. This Agreement (including the exhibits, schedules and
other documents referred to herein) contains the entire understanding between
the parties hereto with respect to the subject matter hereof and supersedes any
prior understandings, agreements or representations, written or oral, relating
to the subject matter hereof.
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B. Counterparts. This Agreement may be executed in separate counterparts,
each of which will be an original and all of which taken together shall
constitute one and the same agreement, and any party hereto may execute this
Agreement by signing any such counterpart.
C. Severability. Whenever possible, each provision of this Agreement shall
be interpreted in such a manner as to be effective and valid under applicable
law but if any provision of this Agreement is held to be invalid, illegal or
unenforceable under any applicable law or rule, the validity, legality and
enforceability of the other provision of this Agreement will not be affected or
impaired thereby. In furtherance and not in limitation of the foregoing, should
the duration or geographical extent of, or business activities covered by, any
provision of this Agreement be in excess of that which is valid and enforceable
under applicable law, then such provision shall be construed to cover only that
duration, extent or activities which may validly and enforceably be covered. The
Employee acknowledges the uncertainty of the law in this respect and expressly
stipulates that this Agreement be given the construction which renders its
provision valid and enforceable to the maximum extent (not exceeding its express
terms) possible under applicable law.
D. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, personal
representatives and, to the extent permitted by subsection E, successors and
assigns.
E. Assignability. Neither this Agreement nor any right, remedy, obligation
or liability arising hereunder or by reason hereof shall be assignable
(including by operation of law) by either party without the prior written
consent of the other party to this Agreement, except that the Company may,
without the consent of the Employee, assign its rights and obligations under
this Agreement to any corporation, firm or other business entity with or into
which the Company may merge or consolidate, or to which the Company may sell or
transfer all or substantially all of its assets, or of which 50% or more of the
equity investment and of the voting control is owned, directly or indirectly,
by, or is under common ownership with, the Company. After any such assignment by
the Company, the Company shall be discharged from all further liability
hereunder and such assignee shall thereafter be deemed to be the Company for the
purposes of all provisions of this Agreement including this Section 11.
F. Modification, Amendment, Waiver or Termination. No provision of this
Agreement may be modified, amended, waived or terminated except by an instrument
in writing signed by the parties to this Agreement. No course of dealing between
the parties will modify, amend, waive or terminate any provision of this
Agreement or any rights or obligations of any party under or by reason of this
Agreement. No delay on the part of the Company in exercising any right hereunder
shall operate as a waiver of such right. No waiver, express or implied, by the
Company of any right or any breach by the Employee shall constitute a waiver of
any other right or breach by the Employee.
G. Notices. All notices, consents, requests, instructions, approvals or
other communications provided for herein shall be in writing and delivered by
personal delivery, overnight courier, mail, electronic facsimile or e-mail
addressed to the receiving party at the address set forth herein. All such
communications shall be effective when received.
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XXXXXXXXXX.XXX, INC.
00 Xxxxxxxx, Xxxxx X
Xxxx, Xxxxxx 00000
Fax: -----------------------
EMPLOYEE:
William Galine
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----------------------------
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Fax: -----------------------
Any party may change the address set forth above by notice to each other party
given as provided herein.
H. Headings. The headings and any table of contents contained in this
Agreement are for reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement.
I. Governing Law. ALL MATTERS RELATING TO THE INTERPRETATION, CONSTRUCTION,
VALIDITY AND ENFORCEMENT OF THIS AGREEMENT SHALL BE GOVERNED BY THE INTERNAL
LAWS OF THE STATE OF NEVADA, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW
PROVISIONS THEREOF.
J. Third-Party Benefit. Nothing in this Agreement, express or implied, is
intended to confer upon any other person any rights, remedies, obligations or
liabilities of any nature whatsoever.
K. Withholding Taxes. The Company may withhold from any benefits payable
under this Agreement all federal, state, city or other taxes as shall be
required pursuant to any law or governmental regulation or ruling.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth on page one. This Agreement may be executed in counterparts.
XXXXXXXXXX.XXX, INC.
By /s/ Xxxx XxXxxxx
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Its Chief Executive Officer
------------------------------------
/s/ William Galine
------------------------------------
William Galine
12
Exhibit A to Employment Agreement
Name of Employee: William Galine
Term of Agreement: 36 Months
Title of position (if any): Vice President
Base salary:
$75,000 per year
Stock Options: Exercisable to acquire 125,000 shares of common stock
("Options")*
Number of Shares Exercise Price Vesting Date Expiry Date
------------------------------- ---------------------------- ---------------------------- ----------------------------
One-third of all Options $6.75 per share June 14, 2000 June 14, 2003
One-thirty sixth of all $6.75 per share Each month beginning Three years from the
Options July 14, 2000 and vesting date
ending June 14, 2002
EMPLOYER EMPLOYEE
XXXXXXXXXX.XXX, INC.
By /s/ Xxxx XxXxxxx
-------------------------------- ------------------------------------
Its Chief Executive Officer /s/ William Galine
-------------------------------- ------------------------------------
William Galine
Date Date
------------------------------- -------------------------------
*All options will be granted pursuant to a definitive Stock Option Plan that
will be provided to Employee.
