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Exhibit 10.12
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made as of August 1, 1999, by and between
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a California corporation (the "Company") and ▇▇▇▇ ▇▇▇▇▇,
("Employee").
1. EMPLOYMENT. The Company hereby employs Employee to render
exclusive and full-time services subject to the terms, conditions and provisions
of this Agreement. Employee shall be an officer of the Company and shall have
the title "Senior Vice President and Secretary of the Board". Employee shall
render her services at such places in Camarillo, California and as the Company
shall designate from time to time.
2. ACCEPTANCE OF EMPLOYMENT. Employee hereby accepts employment by
the Company subject to the terms, conditions and provisions of this Agreement,
and agrees to devote her entire working time and attention and best talents and
abilities exclusively to the service of the Company as the Company may direct
during the term hereof. It is expressly understood and agreed that in the
performance of her duties and obligations hereunder, Employee shall at all times
be subject to the control and direction of the Company's Board of Directors.
3. TERM. Notwithstanding the date on which this Agreement is
actually executed by the Company and Employee or the date on which Employee is
actually elected Senior Vice President and Secretary of the Board, the term of
this Agreement shall begin as of July 1, 1999, and shall continue until June 30,
2000, unless sooner terminated as hereinafter provided. In the event that
Employee shall continue in the full-time employment of the Company after June
30, 2000, such continued employment shall be subject to the terms and conditions
of this Agreement, and the term of this Agreement shall include the period
during which Employee in fact so continues in such employment.
4. DUTIES. In her capacity as Senior Vice President she shall
assist the Chief Executive Officer and President in the execution of the
Company's business plan. In her capacity as Secretary of the Board she shall
assist the Chairman in the operation of the Corporation and the conduct of all
official meetings of the Board and the Shareholders. She will maintain the
Corporate books and minutes and interface with professional services firms in
regard to corporate matters.
4.1 EXCLUSIVE EMPLOYMENT. Employee shall devote her full
business time and effort during normal business hours to the business and
affairs of the Company. Employee shall not be involved in any business
activities other than those performed for the Company except as shall be
permitted by the Board of Directors of the Company, as evidenced by resolution
of the Board of Directors. Nothing in this Section shall prevent Employee from
making passive financial investments. For purposes of this Agreement, "full
business time" shall mean an average minimum of forty (40) hours per week as
such weekly average shall be determined each month.
4.2 SERVICES. Employee shall perform the duties of the
Senior Vice President and Secretary of the Board of the Company, as defined in
the Company's Bylaws in effect from time to time.
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5. COMPENSATION
5.1 SALARY. In full consideration for the services to be
rendered by Employee and in complete discharge of its salary obligations
hereunder, the Company shall pay to Employee and Employee shall accept from the
Company the following (subject to all withholding requirements which may be
imposed by applicable federal, state or local authorities):
5.1.1 a salary equal to Seventy-two Thousand Dollars
($72,000.00) per year, which salary shall be paid in accordance with the
Company's normal payment procedures;
5.1.2 reimbursement on a monthly basis for all
reasonable expenses incurred in connection with the performance of duties under
this Agreement, provided that such expenses are documented and approved by the
Company in each instance;
5.1.3 such fringe benefits (such as paid vacations and
participation in medical insurance plans and employee benefit plans) as may be
authorized from time to time by the Board of Directors and as are generally
available to all executive officers and senior employees of the Company; and
5.1.4 such other benefits (if any) as may be
authorized from time to time by the Board of Directors of the Company and as are
generally available to all executive officers and senior employees of the
Company.
5.2 STOCK OPTION PLAN. Employee shall be eligible to
participate in the Company's 1997 Stock Option Plan and all other stock option,
stock bonus and other incentive plans here or hereafter adopted by the Company,
and in which executive officers and senior employees of the Company generally
are eligible to participate.
5.3 BONUS. Promptly after the end of each fiscal year, but
in no event later than June 30, the Company shall review Employee's performance
during such fiscal year and shall determine whether the Company shall pay
Employee a bonus with respect to such fiscal year and, if so, the amount of any
such bonus. Employee acknowledges and agrees that nothing in this Agreement or
the Company's general policies shall require the Company to pay Employee a bonus
for any fiscal year, to pay Employee a bonus in particular amount or to pay
Employee a bonus by reason of the Company's payment of a bonus to any other
employees of the Company. Notwithstanding anything in this Agreement to the
contrary, the Company shall have no obligation to pay Employee any bonus for any
fiscal year unless the amount and determination to pay the bonus has been
approved by the Board of Directors of the Company.
5.4 ANNUAL REVIEW. At the end of each fiscal year of the
Company, the Company's Board of Directors shall review the salary and other
benefits payable and provided to Employee under this Agreement and shall adjust
such compensation and benefits effective as of the first day of the succeeding
fiscal year to reflect employee's performance during the just-ended fiscal year.
6. POLICIES AND REGULATIONS. Employee shall observe, comply with
and be bound by all of the policies, rules and regulations established by the
Company with respect to its employees and otherwise, all of which are subject to
change by the Company from time to time.
7. TERMINATION.
7.1 TERMINATION BY THE COMPANY. The Company may terminate
this Agreement by giving to Employee thirty (30) days prior written notice of
the resolution of the Company's Board of Directors to discharge Employee for
"cause". For purposes of this Section , the term "cause" shall mean and include
only (a) conviction
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of or confession by Employee to theft, fraud, or embezzlement against the
Company; (b) Employee's refusal or failure, after specific notice and demand by
the Company, to diligently perform services for the Company as required by
Section 2 hereof; and (c) the incapacity or disability of Employee, as a result
of which Employee is prevented from fully performing Employee's services under
this Agreement for a consecutive period of sixty (60) days or longer or an
aggregate of ninety (90) days or more during any twelve-month period. This
Agreement shall terminate automatically at the end of such 30-day period and the
Company shall have no further obligation to give Employee any further notice of
termination.
7.2 TERMINATION BY EMPLOYEE. Employee may terminate this
Agreement for "cause" by giving the Company thirty (30) days prior written
notice of employee's intent to terminate her employment. For purposes of this
Section, the term "cause" shall include, but not be limited to the Company's
breach or failure to perform any of its material obligations under this
Agreement. At the end of such 30-day period, the Company's obligations to
Employee under this Agreement shall cease; except that the Company shall be
required to pay Employee any compensation that may be owing for services
rendered under this Agreement prior to the date of termination.
7.3 EMPLOYEE'S DEATH. This Agreement shall terminate
automatically as of the date of Employee's death.
7.4 EFFECT OF TERMINATION. In the event of the termination
of this Agreement and except as otherwise specifically provided in this
Agreement, the Company shall be released and discharged of and from all
obligations under this Agreement except for its obligation to pay to Employee
monies due and owing to Employee with respect to services performed prior to the
date of termination of this Agreement.
8. SUCCESSORS. This Agreement shall inure to the benefit of the
Company's successors, assigns, grantees, and its affiliated, subsidiary, and
parent companies. The Company may assign this Agreement and grant its rights
hereunder in whole or in part to any affiliate, subsidiary or parent of the
Company, to its successor or successors, or to a corporation with which it may
be merged, consolidated, or combined, or to a corporation which may acquire all
or a major portion of the Company's assets; provided that no such assignment
shall be effective unless and until any such assignee shall expressly assume all
of the Company's obligations hereunder.
9. CONFIDENTIAL INFORMATION.
9.1 CONFIDENTIALITY. Employee shall not, either during the
term of this Agreement or thereafter, except in the proper course of his
performance of services under this Agreement, use or divulge, publish or
disclose to any person, firm or company whomsoever any confidential information
of the Company or any of its affiliate, subsidiary, or parent companies which
she has heretofore received or obtained or hereafter receives or obtains, in
relation to (a) the earnings, profits, costs, expenses or other financial
aspects of the Company or such other company, (b) the clients, customer lists,
or marketing practices of the Company or such other company, or (c) any other
confidential information of the Company or such other company. The term
"confidential information" shall mean all that information which here or
hereafter is not generally known and which is confidential or proprietary to the
Company or such other company. All information disclosed to Employee, or which
Employee may obtain or have access to by reason of his employment under this
Agreement, whether such information is originated by Employee or by others,
which Employee reasonably should believe to be confidential information, or
which is treated by the Company as confidential information, shall be treated
for all purposes under this Agreement as confidential information. Immediately
upon termination of his employment hereunder Employee shall return to the
Company all records, files, documents and other materials (in whatever form or
media) and all copies thereof, which contain or relate to any confidential
information of the Company.
9.2 OWNERSHIP OF CONFIDENTIAL INFORMATION. Employee hereby
acknowledges that all
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Confidential Information is the property of the Company.
9.3 INJUNCTIVE RELIEF. Employee hereby acknowledges and
agrees that it would be difficult to fully compensate the Company for damages
for a breach or threatened breach of any of the provisions of Section 10.1 and
10.2 or hereof. Accordingly, Employee specifically agrees that the Company shall
be entitled to temporary and permanent injunctive relief to enforce the
provisions of Section 10.1 and 10.2 and hereof and that such relief may be
granted without the necessity of proving actual damages. The foregoing provision
with respect to injunctive relief shall not, however, prohibit the Company from
pursuing any other rights or remedies available to the Company for such breach
or threatened breach, including, but not limited to, the recovery of damages
from Employee or any third parties.
10. MISCELLANEOUS PROVISIONS.
10.1 NOTICES. Any notice given pursuant to this Agreement may
be served personally on the party to be notified or may be mailed, with postage
thereon fully prepaid, by certified or registered mail with return receipt
requested, addressed to the person at the address set forth on the signature
page of this Agreement, or at such other address as such party may from time to
time designate in writing. Any notice shall be deemed delivered when given, if
personally served, and ten (10) business days after mailing, if mailed.
10.2 WAIVERS. All rights and remedies of the parties hereto
are separate and cumulative, and no one of them, whether exercised or not, shall
be deemed to limit or exclude any other rights or remedies which the parties
hereto may have. Neither party hereto shall be deemed to waive any rights or
remedies under this Agreement unless such waiver is in writing and signed by
such party. No delay or omission on the part of either party hereto in
exercising any right or remedy shall operate as a waiver of such right or remedy
or any other right or remedy. A waiver of any right or remedy on any one
occasion shall not be construed as a bar to or waiver of any such right or
remedy on any future occasion.
10.3 SEVERABILITY. If any provision or portion thereof of
this Agreement is held to be unenforceable or invalid, the remaining provisions
and portions thereof shall nevertheless be given and continue in full force and
effect.
10.4 SECTION HEADINGS. Section headings contained in this
Agreement are for convenience only and are not a part of this Agreement and do
not in any way limit or modify the provisions of this Agreement.
10.5 SURVIVAL OF CERTAIN PROVISIONS. Notwithstanding anything
to the contrary contained herein, in the event of any termination of this
Agreement, the Company shall retain all of its rights under Sections 8.1, 8.2,
8.3, and 8.4, and hereof.
10.6 AUTHORIZED REPRESENTATIVE OF COMPANY. Although Employee
is an officer of the Company, any and all actions and decisions to be taken or
made by the Company under this Agreement or with respect to the employment
relationship described in this Agreement, and any and all consents, approvals
and agreements permitted or required to be given or made on the part of The
Company under this Agreement, shall be made and accomplished by the Company only
through the actions taken, in writing, of its Chief Executive Officer or such
other person or persons as the Board of Directors of the Company may from time
to time designate.
10.7 ARBITRATION. Except for any action for specific
performance or injunctive or other equitable relief, any controversy or claim
between the Company and Employee involving the construction or application of
any of the terms, provisions or conditions of this Agreement shall be settled by
arbitration conducted in the City of Camarillo in accordance with, and by an
arbitrator appointed pursuant to, the Rules of the American
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Arbitration Association in effect at the time, and judgment upon the award
rendered pursuant thereto may be entered in any court having jurisdiction
hereof, and all rights or remedies of the parties hereto to the contrary are
hereby expressly waived. The arbitration will be conducted in private, and will
not be open to the public or the media. The testimony and other evidence
presented, and the results of the arbitration, unless otherwise agreed to by
both parties, are confidential and may not be made public or reported by any
news agency or legal publisher or service.
10.8 ENTIRE AGREEMENT. This Agreement contains the entire
understanding between the parties hereto, and supersedes any prior written or
oral agreements between them respecting the subject matter contained herein.
There are no representations, agreements, arrangements, or understandings,
either oral or written, between or among any of the parties relating to the
subject matter of this Agreement which are not fully expressed herein.
10.9 AMENDMENT. This Agreement may be amended only in writing
duly executed by all of the parties hereto.
10.10 GOVERNING LAW. All questions with respect to the
construction of this Agreement and the rights and liabilities of the parties
with respect thereto shall be governed by the laws of the State of California.
10.11 ATTORNEY'S FEES. In any arbitration, suit or other
action between the parties seeking enforcement of any of the terms and
provisions of this Agreement, the prevailing party in such arbitration, suit or
other action shall be awarded, in addition to damages, injunctive or other
relief, its reasonable costs and expenses, not limited to taxable costs, and a
reasonable attorney's fees.
(Signatures appear on the following page)
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IN WITNESS WHEREOF, the parties have entered into this Employment
Agreement as of the day and year first above written.
"Company" "Employee"
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇
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▇▇▇ ▇▇▇▇▇, CEO ▇▇▇▇ ▇▇▇▇▇
ADDRESS FOR NOTICE ADDRESS FOR NOTICE
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ____________________________________
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ____________________________________
Attn: CEO
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