EXHIBIT 10.12
May 19, 1999
▇▇▇▇▇▇▇▇▇▇▇ ▇. Carton
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Mr. Carton:
This letter agreement (the "Agreement") sets forth the terms and conditions
of your employment with ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. (the "Company").
In consideration of the mutual covenants and promises made in this
Agreement, you and the Company agree as follows:
1. Employment. Commencing as of May 19, 1999 (the "Effective Date"), you
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will serve as the Company's President and Chief Operating Officer. You will be
given such duties, responsibilities and authority as are appropriate to such
position. Throughout the term of your employment, you will devote such business
time and energies to the business and affairs of the Company as needed to carry
out your duties and responsibilities, subject to the overall supervision and
direction of the Chairman and Chief Executive Officer ("CEO") of the Company.
2. Term. The term of this Agreement will commence on the Effective Date
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and shall continue for two (2) years thereafter. During the term of this
Agreement, your employment with the Company will be "at-will." Either you or the
Company can terminate your employment at any time and for any reason, with or
without cause and with or without notice, in each case subject to the terms and
provisions of paragraph 7 below.
3. Salary. For your services to the Company, you will be paid a base
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salary, payable in accordance with the Company's usual payroll practices during
your employment, at an annualized rate of $200,000 per year.
4. Bonus. During the term of this Agreement, you will be eligible for a
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bonus in an amount to be determined by the CEO in his sole discretion.
5. Employee Benefit Programs. During your employment, you will be
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entitled to participate in all Company employee benefit plans and compensation
and perquisite programs made available to the Company's executives or salaried
employees generally. The company shall make a car available to you during the
term of your employment. The Company will pay the cost of $1,000,000 in whole
life insurance coverage for you. You will be entitled to eight weeks of
vacation per year, provided that you will not accrue unused vacation of more
than eight weeks.
6. Stock Options. You have previously been granted stock options
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covering
▇▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇. Carton
May 19, 1999
Page 2
200,000 shares which vest in three installments, with 1/3 vesting 6 months from
the date of grant and 1/3 vesting at the end of each six-month period
thereafter, for full vesting after 18 months.
7. Consequences of Termination of Employment.
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(a) For Cause. If the Company terminates your employment for Cause you
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will be entitled to any unpaid salary, bonus and vacation due you pursuant to
paragraphs 3, 4 and 6 above through the date of termination, and you will be
entitled to no other compensation from the Company. "Cause" will exist in the
event you: (i) willfully breach this Agreement, which breach is not cured within
10 days following written notice from the Company; (ii) engage in conduct
constituting willful dishonesty toward, fraud upon, or deliberate or attempted
injury to the Company; or (iii) are negligent in the performance of your duties,
which negligence is not cured within 10 days following written notice from the
Company
(b) Other than for Cause. If the Company terminates your employment for
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reasons other than Cause, including in a Constructive Termination, you will be
entitled to any unpaid salary, bonus and vacation due you pursuant to paragraphs
3, 4 and 6 above through the date of termination plus two (2) times the sum of
(i) your base salary in effect at the date of your termination of employment,
which shall not be less than the amount established pursuant to this Agreement,
and (ii) the greater of (a) the last bonus you received prior to your
termination from employment, or (b) fifty percent (50%) of your base salary. You
will not be entitled to any other compensation from the Company.
"Constructive Termination" will exist in the event you terminate your
employment with the Company after the Company: (i) materially breaches this
Agreement, which breach is not cured within 10 days following written notice
from you; (ii) changes your title, working conditions or duties such that your
powers are diminished, reduced or otherwise changed to include powers, duties,
or working conditions which are not generally consistent with your title,
continuing after written notice and 10 days to cure; or (iii) involuntarily
relocates your primary place of employment outside of the Las Vegas metropolitan
area.
(c) Voluntary Termination. If you terminate your employment with the
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Company of your own volition other than in a Constructive Termination, such
termination will have the same consequences as a termination for Cause under
subparagraph (a) above. A resignation requested by the Board of Directors shall
in no way be deemed a voluntary termination.
(d) Death or Disability. If your employment with the Company terminates as
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a result of your death or total and permanent disability, such termination will
have the same consequences as a termination by the Company other than for Cause
under subparagraph (b) above.
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May 19, 1999
Page 3
(e) Release of Claims. As a condition to the receipt of the payments
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described in this paragraph 7, you shall be required to execute a release of all
claims arising out of your employment or the termination thereof including, but
not limited to, any claim of discrimination under state or federal law, but
excluding claims for indemnification from the Company under any indemnification
agreement with the Company, its certificate of incorporation and by-laws or
applicable law or claims for directors and officers' insurance coverage.
(f) Conditions to Receipt of Payments and Benefits. In view of your
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position and access to proprietary information, as a condition to the receipt of
payments described in this paragraph 7, you shall not, without the Company's
written consent, directly or indirectly, alone or as a partner, joint venture,
officer, director, employee, consultant, agent or stockholder (other than a less
than 5% stockholder of a publicly traded company), within one year of your date
of termination from the Company (i) engage in any activity which is in
competition with the business, the products or services of the Company, (ii)
solicit any of the Company's employees, consultants or customers, (iii) hire any
of the Company's employees or consultants in an unlawful manner or actively
encourage employees or consultants to leave the Company, or (iv) otherwise
breach your proprietary information obligations. You agree to execute and comply
with the form of proprietary information agreement adopted by the Company.
8. Assignability; Binding Nature. Commencing on the Effective Date, this
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Agreement will be binding upon you and the Company and your respective
successors, heirs, and assigns. This Agreement may not be assigned by you except
that your rights to compensation and benefits hereunder, subject to the
limitations of this Agreement, may be transferred by will or operation of law.
No rights or obligations of the Company under this Agreement may be assigned or
transferred except by operation of law in the event of a merger or consolidation
in which the Company is not the continuing entity, or the sale or liquidation of
all or substantially all of the assets of the Company, provided that the
assignee or transferee is the successor to all or substantially all of the
assets of the Company and assumes the Company's obligations under this Agreement
contractually or as a matter of law.
9. Governing Law. This Agreement will be deemed a contract made under,
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and for all purposes shall be construed in accordance with, the laws of Nevada
(without regard to its choice of law provisions).
10. Arbitration. The parties agree that any disputes arising out of or
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related to the Agreement shall be resolved by using the following procedures:
(a) The party claiming to be aggrieved shall furnish to the other party a
written statement of the grievance and the relief requested or proposed.
(b) If the other party does not agree to furnish the relief requested or
proposed, or otherwise does not satisfy the demand of the party claiming to be
aggrieved, the parties shall submit the dispute to nonbinding mediation before a
mediator to be jointly selected by the parties.
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May 19, 1999
Page 4
(c) If the mediation does not produce a resolution of the dispute, the
parties agree that the dispute shall be resolved by final and binding
arbitration in Las Vegas, Nevada. The parties shall attempt to agree to the
identity of an arbitrator, and, if they are unable to do so, they will obtain a
list of arbitrators from the Judicial Arbitration and Mediation Service and
select an arbitrator by striking names from that list. The arbitrator shall have
the authority to determine whether the conduct complained of violates the rights
of the complaining party and, if so, to grant any relief authorized by law. The
arbitrator shall not have the authority to modify, change or refuse to enforce
the terms of this Agreement.
(d) Arbitration shall be the exclusive final remedy for any dispute
between the parties, and the parties agree that no dispute shall be submitted to
arbitration where the party claiming to be aggrieved has not complied with the
preliminary steps provided for above, provided however, that this Section 10
shall not be construed to eliminate or reduce any right the Company or the
Executive may otherwise have to seek and obtain from a court a temporary
restraining order or a preliminary or permanent injunction to enforce the
restrictions of subparagraph 5(f) of this Agreement. The parties agree that the
arbitration award shall be enforceable in ▇▇▇▇▇ County Superior Court so long as
the arbitrator's findings of fact are supported by substantial evidence on the
whole and the arbitrator has not made errors of law.
11. Withholding. Anything to the contrary notwithstanding, following the
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Effective Date all payments made by the Company hereunder to you or your estate
or beneficiaries will be subject to tax withholding pursuant to any applicable
laws or regulations. In lieu of withholding, the Company may, in its sole
discretion, accept other provision for payment of taxes as required by law,
provided it is satisfied that all requirements of law affecting its
responsibilities to withhold such taxes have been satisfied.
12. Entire Agreement. This Agreement contains all the legally binding
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understandings and agreements between you and the Company pertaining to the
subject matter of this Agreement and supersedes all such agreements, whether
oral or in writing, previously entered into between the parties.
▇▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇. Carton
May 19, 1999
Page 5
13. Miscellaneous. No provision of this Agreement may be amended or waived
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unless such amendment or waiver is agreed to by you and the Board in writing. No
waiver by you or the Company of the breach of any condition or provision of this
Agreement will be deemed a waiver of a similar or dissimilar provision or
condition at the same or any prior or subsequent time. In the event any portion
of this Agreement is determined to be invalid or unenforceable for any reason,
the remaining portions shall be unaffected thereby and will remain in full force
and effect to the fullest extent permitted by law.
Please indicate your acceptance and understanding of the terms of this
Agreement by signing and dating below.
Sincerely,
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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Its CEO
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ACKNOWLEDGED AND AGREED:
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. CARTON
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(Executive)
Dated: May 19, 1999