EXHIBIT 10.11
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement"), entered into as of the
______ day of ________, 1996, by and between WESTMARK GROUP HOLDINGS, INC., a
Colorado corporation ("Employer"), and DAWN DRELLA ("Employee").
W I T N E S S E T H:
WHEREAS, Employer desires to employ Employee as provided herein; and
WHEREAS, Employee desires to accept such employment.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. EMPLOYMENT. Employer hereby employs Employee and Employee hereby
accepts employment with Employer upon the terms and conditions hereinafter set
forth.
2. DUTIES. Subject to the power of the Board of Directors of Employer to
elect and remove officers, Employee will serve Employer as its Chief Financial
Officer and will faithfully and diligently perform the services and functions
relating to such office(s) or otherwise reasonably incident to such office,
provided that all such services and functions will be reasonable and within
Employee's area of expertise. Employee will, during the term of this Agreement
(or any extension thereof), devote one-fourth of her full time, attention and
skills and best efforts to the promotion of the business of Employer; such
parties acknowledging that Employee is an officer of Heart Labs, where she
devotes the balance of her efforts. The foregoing will not be construed as
preventing Employee from making investments in other businesses or enterprises
provided that (a) Employee agrees not to become engaged in any other business
activity that interferes with her ability to discharge her duties and
responsibilities to Employer, and (b) Employee does not violate any other
provision of this Agreement.
3. TERM. The term of this Agreement will commence as of the date hereof
and will end on that date in the year 1997, unless earlier terminated by either
party pursuant to the terms hereof. The term of this Agreement is referred to
herein as the "Term."
4. COMPENSATION. As compensation for the services rendered under this
Agreement, Employee will be entitled to receive the following:
(a) SALARY. Commencing upon the date of this Agreement, Employee will
be paid a minimum annual salary of Twenty Thousand and no/100 Dollars
($20,000.00), payable in accordance with the then current payroll policies of
Employer or as otherwise agreed to by the parties (the "Salary"). At any time
and from time to time the Salary may be increased for the remaining portion of
the term if so determined by the Board of Directors of Employer after a review
of Employee's performance of her duties hereunder.
(b) STOCK. Commencing on the date of this Agreement, Employee shall
be issued 10,000 shares of common stock of the Company.
(c) EXPENSES. Upon submission of a detailed statement and reasonable
documentation, Employer will reimburse Employee in the same manner as other
executive officers for all reasonable and necessary or appropriate out-of-pocket
travel and other expenses incurred by Employee in rendering services required
under this Agreement.
(d) BENEFITS; INSURANCE.
(i) MEDICAL, DENTAL AND VISION BENEFITS. During this Agreement,
Employee and her dependents will be entitled to receive such group
medical, dental and vision benefits as Employer may provide to its other
employees, provided such coverage is reasonably available, or be
reimbursed if Employee is carrying her own similar insurance.
(ii) BENEFIT PLANS. The Employee will be entitled to
participate in any benefit plan or program of the Employer which may
currently be in place or implemented in the future.
(iii) OTHER BENEFITS. During the Term, Employee will be entitled
to receive, in addition to and not in lieu of base salary, bonus or other
compensation, such other benefits and normal perquisites as Employer
currently provides or such additional benefits as Employer may provide for
its executive officers in the future.
(e) VACATION. Employee will be entitled to ____ weeks of vacation
per year.
5. CONFIDENTIALITY. In the course of the performance of Employee's duties
hereunder, Employee recognizes and acknowledges that Employee may have access to
certain confidential and proprietary information of Employer or any of its
affiliates. Without the prior written consent of Employer, Employee shall not
disclose any such confidential or proprietary information to any person or firm,
corporation, association, or other entity for any reason or purpose whatsoever,
and shall not use such information, directly or indirectly, for Employee's own
behalf or on behalf of any other party. Employee agrees and affirms that all
such information is the sole property of Employer and that at the termination
and/or expiration of this Agreement, at Employer's written request, Employee
shall promptly return to Employer any and all such information so requested by
Employer.
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The provisions of this Section 5 shall not, however, prohibit
Employee from disclosing to others or using in any manner information that:
(a) has been published or has become part of the public domain other
than by acts, omissions or fault of Employee;
(b) has been furnished or made known to Employee by third parties
(other than those acting directly or indirectly for or on behalf of Employee) as
a matter of legal right without restriction on its use or disclosure;
(c) was in the possession of Employee prior to obtaining such
information from Employer in connection with the performance of this Agreement;
or
(d) is required to be disclosed by law.
6. INDEMNIFICATION. The Corporation shall to the full extent permitted
by law indemnify, defend and hold harmless Employee from and against any and all
claims, demands, liabilities, damages, loses and expenses (including reasonable
attorney's fees, court costs and disbursements) arising out of the performance
by her of her duties hereunder except in the case of her willful misconduct.
7. TERMINATION. This Agreement and the employment relationship created
hereby will terminate upon the occurrence of any of the following events:
A. TERMINATION WITH CAUSE BY THE COMPANY. The Company may terminate the
Employee's employment pursuant to the terms of this Agreement at any time for
cause by giving written notice of termination, and termination will become
effective upon the giving of such notice.
For purposes of Section 7(A), "Just Cause" means (i) Employee has
willfully, intentionally and continuously failed to substantially perform her
duties as specified under this Agreement, after a demand for substantial
performance is delivered to the Employee by the Employer which specifically
identifies the manner in which Employer believes Employee has not substantially
performed has duties; (ii) Employee has willfully engaged in gross misconduct
materially and demonstrably injurious to the Employer; (iii) the Employee
commits acts of dishonesty or disloyalty to Employer or misappropriates Company
funds or otherwise defrauds the Company: (iv) the Employee materially breaches
any provision of Section 5 of this Agreement; (v) material failure by Employee
to comply with applicable laws or government regulations; or (vi) Employee's
criminal conviction by any state or federal court of a felony.
B. DEATH OR DISABILITY. This Agreement and the obligations hereunder
will terminate upon the death or disability of the Employee. For purposes of
this Section 6C, "Disability" shall mean for a period of three months in any
twelve month period the Employee is
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incapable of substantially fulfilling the duties set forth in Section 2 of this
Agreement because of physical, mental or emotional incapacity resulting from
injury, sickness or disease. Upon any such termination upon death or disability,
the Company will pay the Employee or her legal representative, as the case may
be, her annual salary at such time pursuant to Section 4 through the date of
such termination of employment.
C. CONTINUING EFFECT. Notwithstanding any termination of the Employee's
employment as provided in this Section 7, the provisions of Section 5 shall
remain in full force and effect.
D. CONSIDERATION. The payments (if any) required to be paid by the
Company to Employee pursuant to Section 7 shall be in full and complete
satisfaction of any and all obligations owing to Employee under this Agreement.
8. WAIVER OF BREACH. The waiver by any party hereto of a breach of any
provision of this Agreement will not operate or be construed as a waiver of any
subsequent breach by any party.
9. COSTS. If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party will be entitled to
reasonable attorney's fees, costs and necessary disbursements in addition to any
other relief to which he or it may be entitled.
10. NOTICES. Any notices, consents, demands, requests, approvals and other
communications to be given under this Agreement by either party to the other
will be deemed to have been duly given if given in writing and personally
delivered or within two days if sent by mail, registered or certified, postage
prepaid with return receipt requested, as follows:
If to Employer: Westmark Group Holdings, Inc.
355 N. E. Fifth Avenue, Suite 4
Delray Beach, Florida 33483
Attention: Norman Birmingham
If to Employee: Dawn Drella
355 N. E. Fifth Avenue, Suite 4
Delray Beach, Florida 33483
Notices delivered personally will be deemed communicated as of actual receipt.
11. ENTIRE AGREEMENT. This Agreement and the agreements contemplated
hereby constitute the entire agreement of the parties regarding the subject
matter hereof, and
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supersede all prior agreements and understanding, both written and oral, among
the parties, or any of them, with respect to the subject matter hereof.
12. SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws effective during
this Agreement, such provision will be fully severable and this Agreement will
be construed and enforced as if such illegal, invalid or unenforceable provision
never comprised a part hereof; and the remaining provisions hereof will remain
in full force and effect and will not be affected by the illegal, invalid or
unenforceable provision or by its severance herefrom. Furthermore, in lieu of
such illegal, invalid or unenforceable provision there will be added
automatically as part of this Agreement a provision as similar in its terms to
such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
13. GOVERNING LAW. This Agreement and the rights and obligations of the
parties will be governed by and construed and enforced in accordance with the
substantive laws (but not the rules governing conflicts of laws) of the state of
Florida.
14. CAPTIONS. The captions in this Agreement are for convenience of
reference only and will not limit or otherwise affect any of the terms or
provisions hereof.
15. GENDER AND NUMBER. When the context requires, the gender of all
words used herein will include the masculine, feminine and neuter and the number
of all words will include the singular and plural.
16. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which will
constitute one and the same instrument, but only one of which need be produced.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
EMPLOYER:
WESTMARK GROUP HOLDINGS, INC.
By
Name:
Title:
EMPLOYEE:
DAWN DRELLA
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