EXHIBIT 10.11
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (this "AGREEMENT") is made and
entered into as of this 3rd day of January, 2006, by and between Century Pacific
Financial Corporation, a Delaware corporation (the "COMPANY") and Xxxxxx Xxxxxx
("EXECUTIVE").
1. ENGAGEMENT AND DUTIES.
1.1 Commencing as of November 22, 2005 (the "EFFECTIVE
DATE"), and upon the terms and subject to the conditions set forth in this
Agreement, the Company hereby engages and employs Executive as an officer of the
Company, with the title and designation of Chief Operating Officer and Chief
Financial Officer of the Company. Executive hereby accepts such engagement and
employment.
1.2 Executive's duties and responsibilities shall be
those normally and customarily vested in the offices of Chief Operating Officer
and Chief Financial Officer of a corporation, subject to the supervision,
direction and control of the Chief Executive Officer of the Company (the "CEO").
In addition, Executive's duties shall include those duties and services for the
Company and its affiliates as the CEO or the Board of Directors of the Company
(the "BOARD") shall from time to time reasonably direct. Executive shall report
directly to the CEO.
1.3 Executive agrees to devote his primary business time,
energies, skills, efforts and attention to his duties hereunder, and will not,
without the prior written consent of the Company, which consent will not be
unreasonably withheld, render any material services to any other business
concern. Executive will use his best efforts and abilities faithfully and
diligently to promote the Company's business interests. Notwithstanding the
foregoing, for a period of up to 6 months following the Effective Date, the
Company agrees that Executive shall be permitted to continue to provide up to
approximately one business day per week of his services to such other entities
as are reasonably acceptable to the Company (the "TRANSITION SERVICES") provided
that such services do not materially interfere with Executives duties to the
Company.
2. TERM OF EMPLOYMENT. Executive's employment pursuant to this
Agreement shall commence on the Effective Date and shall terminate on the
earliest to occur of the following:
(a) the close of business on the date that is two years
following the Effective Date;
(b) the death of Executive;
(c) delivery to Executive of written notice of
termination by the Company if Executive shall suffer a "permanent disability,"
which for purposes of this Agreement shall mean a physical or mental disability
which, in the reasonable judgment of the Board, is likely to render Executive
unable to perform his duties and obligations under this Agreement for ninety
days in any twelve-month period;
(d) delivery to Executive of written notice of
termination by the Company "FOR CAUSE," by reason of: (i) any act or omission
knowingly undertaken or omitted by Executive
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with the intent of causing damage to the Company, its properties, assets or
business or its stockholders, officers, directors or employees; (ii) any act of
Executive involving a material personal profit to Executive, including, without
limitation, any fraud, misappropriation or embezzlement, involving properties,
assets or funds of the Company or any of its subsidiaries; (iii) Executive's
consistent failure to perform his normal duties or any obligation under any
provision of this Agreement, in either case, as directed by the CEO or the
Board; (iv) conviction of, or pleading NOLO CONTENDERE to, (A) any crime or
offense involving monies or other property of the Company; (B) any felony
offense; or (C) any crime of moral turpitude; or (v) the chronic or habitual use
or consumption of drugs or alcoholic beverages; or
(e) delivery to Executive of written notice of
termination by the Company "without cause."
3. COMPENSATION; EXECUTIVE BENEFIT PLANS.
3.1 The Company shall pay to Executive a base salary at
an annual rate of (i) $172,000 during the period from Effective Date and
continuing until such time as Executive is devoting his full-time efforts to the
Company and is no longer performing the Transition Services, and thereafter at
rate of $212,000 through the one-year anniversary of the Effective Date; and
(ii) 232,000 for the period commencing after the one-year anniversary of the
Effective Date and for the remaining term of this Agreement. The base salary
shall be payable in installments throughout the year in the same manner and at
the same times the Company pays base salaries to other executive officers of the
Company. In the event that Executive's employment is terminated pursuant to
SECTION 2(E), above, the Company shall continue to pay Executive's then-current
base salary for the remaining term of this Agreement, without regard to any
employment of Executive by a third party.
3.2 In addition to the base salary to be paid to
Executive hereunder, the Company shall pay to Executive an annual performance
bonus (the "BONUS") determined in accordance with a management incentive plan
approved the Board on an annual basis. The management incentive plan will
provide for the payment of a Bonus of not less than $25,000, provided that the
Bonus may be up to $100,000 based upon achieving the "target" objectives set
forth in the management incentive plan.
3.3 Executive shall be entitled each year to vacation for
a minimum of three calendar weeks, plus such additional period or periods as the
Board may approve in the exercise of its reasonable discretion, during which
time his compensation shall be paid in full.
3.4 As soon as practicable following the effective date
of stockholder approval of the Company's 2005 Stock Incentive Plan (the "PLAN")
(which shall occur approximately twenty days following the date a Schedule 14C
Information Statement describing stockholder approval of the Plan is first
mailed to stockholders), Executive shall be granted an non-qualified stock
option to purchase 2,775,000 shares (or 300,000 shares after giving effect to
the 1-for-9.25 reverse stock split presently contemplated by the Company) of the
Company's common stock at a per share exercise price equal to the "fair market
value" of such shares on the date the option is approved by the Company's Board
of Directors. The options shall be granted pursuant to the Plan, and shall be
evidenced by a stock option agreement vest as to 1/12th of the Option on the
last day of each calendar month after the grant date until fully vested, and the
Option shall
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remain exercisable by Executive for period of at least six months following
termination of Executive's service with the Company for any reason other than
for cause.
3.5 Executive shall be entitled to reimbursement from the
Company for the reasonable costs and expenses which he incurs in connection with
the performance of his duties and obligations under this Agreement in a manner
consistent with the Company's practices and policies as adopted or approved from
time to time by the Board for executive officers.
3.6 The Company may deduct from any compensation payable
to Executive the minimum amounts sufficient to cover applicable federal, state
and/or local income tax withholding, old-age and survivors' and other social
security payments, state disability and other insurance premiums and payments.
4. OTHER BENEFITS. During the term of his employment hereunder,
Executive shall be eligible to participate in all operative employee benefit and
welfare plans of the Company then in effect from time to time and in respect of
which all executive officers of the Company generally are entitled to
participate, including, to the extent then in effect, group life, medical,
disability and other insurance plans, all on the same basis applicable to
employees of the Company whose level of management and authority is comparable
to that of Executive.
5. CONFIDENTIALITY OF PROPRIETARY INFORMATION AND MATERIAL.
5.1 INDUSTRIAL PROPERTY RIGHTS. For the purpose of this
Agreement, "INDUSTRIAL PROPERTY RIGHTS" shall mean all of the Company's patents,
trademarks, trade names, inventions, copyrights, know-how or trade secrets,
formulas and science, now in existence or hereafter developed or acquired by the
Company or for its use, relating to any and all products and services which are
developed, formulated and/or manufactured by the Company.
5.2 TRADE SECRETS. For the purpose of this Agreement,
"TRADE SECRETS" shall mean any formula, pattern, device, or compilation of
information that is used in the Company's business and gives the Company an
opportunity to obtain an advantage over its competitors who do not know and/or
do not use it. This term includes, but is not limited to, information relating
to the marketing of the Company's products and services, including price lists,
pricing information, customer lists, customer names, the particular needs of
customers, information relating to their desirability as customers, financial
information, intangible property and other such information which is not in the
public domain.
5.3 TECHNICAL DATA. For the purpose of this Agreement,
"TECHNICAL DATA" shall mean all information of the Company in written, graphic
or tangible form relating to any and all products which are developed,
formulated and/or manufactured by the Company, as such information exists as of
the Effective Date or is developed by the Company during the term hereof.
5.4 PROPRIETARY INFORMATION. For the purpose of this
Agreement, "PROPRIETARY INFORMATION" shall mean all of the Company's Industrial
Property Rights, Trade Secrets and Technical Data. Proprietary Information shall
not include any information which (i) was lawfully in the possession of
Executive prior to Executive's employment with the Company, (ii) may be obtained
by a reasonably diligent businessperson from readily available and public
sources of information, (iii) is lawfully disclosed to Executive after
termination of Executive's
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employment by a third party which does not have an obligation to the Company to
keep such information confidential, or (iv) is independently developed by
Executive after termination of Executive's employment without utilizing any of
the Company's Proprietary Information.
5.5 AGREEMENT NOT TO COPY OR USE. Executive agrees, at
any time during the term of his employment and for a period of ten years
thereafter, not to copy, use or disclose (except as required by law after first
notifying the Company and giving it an opportunity to object) any Proprietary
Information without the Company's prior written permission. The Company may
withhold such permission as a matter within its sole discretion during the term
of this Agreement and thereafter. Notwithstanding anything contained, Executive
shall be permitted to retain an electronic copy of Executive's personal contact
database.
6. RETURN OF CORPORATE PROPERTY AND TRADE SECRETS. Upon any
termination of this Agreement, Executive shall turn over to the Company all
property, writings or documents then in his possession or custody belonging to
or relating to the affairs of the Company or comprising or relating to any
Proprietary Information.
7. DISCOVERIES AND INVENTIONS.
7.1 DISCLOSURE. Executive will promptly disclose in
writing to the Company complete information concerning each and every invention,
discovery, improvement, device, design, apparatus, practice, process, method,
product or work of authorship, whether patentable or not, made, developed,
perfected, devised, conceived or first reduced to practice by Executive, whether
or not during regular working hours (hereinafter referred to as "Developments"),
either solely or in collaboration with others, (a) prior to the term of this
Agreement while working for the Company, or (b) during the term of this
Agreement
7.2 ASSIGNMENT. Executive, to the extent that he has the
legal right to do so, hereby acknowledges that any and all Developments are the
property of the Company and hereby assigns and agrees to assign to the Company
any and all of Executive's right, title and interest in and to any and all of
such Developments; PROVIDED, HOWEVER, that, in accordance with California Labor
Code Sections 2870 and 2872, the provisions of this SECTION 7.2 shall not apply
to any Development that the Executive developed entirely on his own time without
using the Company's equipment, supplies, facilities or trade secret information
except for those Developments that either:
(a) relate at the time of conception or
reduction to practice of the Development to the Company's business, or actual or
demonstrably anticipated research or development of the Company; or
(b) result from any work performed by Executive
for the Company.
7.3 ASSISTANCE OF EXECUTIVE. Upon request and without
further compensation therefor, but at no expense to Executive, and whether
during the term of this Agreement or thereafter, Executive will do all
reasonable lawful acts, including, but not limited to, the execution of papers
and lawful oaths and the giving of testimony, that, in the reasonable opinion of
the Company, its successors and assigns, may be necessary or desirable in
obtaining, sustaining, reissuing, extending and enforcing United States and
foreign Letters Patent, including, but not limited to, design patents, on any
and all Developments and for perfecting,
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affirming and recording the Company's complete ownership and title thereto,
subject to the proviso in SECTION 7.2 hereof, and Executive will otherwise
reasonably cooperate in all proceedings and matters relating thereto.
7.4 RECORDS. Executive will keep complete and accurate
accounts, notes, data and records of all Developments in the manner and form
requested by the Company. Such accounts, notes, data and records shall be the
property of the Company, subject to the proviso in SECTION 7.2 hereof, and, upon
request by the Company, Executive will promptly surrender the same to it or, if
not previously surrendered upon its request or otherwise, Executive will
surrender the same, and all copies thereof, to the Company upon the conclusion
of his employment.
7.5 OBLIGATIONS, RESTRICTIONS AND LIMITATIONS. Executive
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. Executive agrees that he shall be bound by all such
obligations, restrictions and limitations applicable to any such invention
conceived or developed by him during the term of this Agreement and shall take
any and all further action which may be required to discharge such obligations
and to comply with such restrictions and limitations.
8. NON-SOLICITATION COVENANT.
8.1 NONSOLICITATION AND NONINTERFERENCE. During the term
of this Agreement and for a period of one year thereafter, Executive shall not
(a) induce or attempt to induce any employee of the Company to leave the employ
of the Company or in any way interfere adversely with the relationship between
any such employee and the Company, (b) induce or attempt to induce any employee
of the Company to work for, render services or provide advice to or supply
confidential business information or trade secrets of the Company to any third
person, firm or corporation or (c) induce or attempt to induce any customer,
supplier, licensee, licensor or other business relation of the Company to cease
doing business with the Company or in any way interfere with the relationship
between any such customer, supplier, licensee, licensor or other business
relation and the Company.
8.2 INDIRECT SOLICITATION. Executive agrees that, during
the term of this Agreement and the period covered by SECTION 8.1 hereof, he 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
provisions of SECTION 8.1 if such activity were carried out by Executive, either
directly or indirectly; and, in particular, Executive agrees that he will not,
directly or indirectly, induce any employee of the Company to carry out,
directly or indirectly, any such activity.
9. INJUNCTIVE RELIEF. Executive hereby recognizes, acknowledges
and agrees that in the event of any breach by Executive of any of his covenants,
agreements, duties or obligations contained in SECTIONS 5, 6, 7 AND 8 of this
Agreement, the Company would suffer great and irreparable harm, injury and
damage, the Company would encounter extreme difficulty in attempting to prove
the actual amount of damages suffered by the Company as a result of such breach,
and the Company would not be reasonably or adequately compensated in damages in
any
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action at law. Executive therefore covenants and agrees that, in addition to any
other remedy the Company may have at law, in equity, by statute or otherwise, in
the event of any breach by Executive of any of his covenants, agreements, duties
or obligations contained in SECTIONS 5, 6, 7 AND 8 of this Agreement, the
Company shall be entitled to seek and receive temporary, preliminary and
permanent injunctive and other equitable relief from any court of competent
jurisdiction to enforce any of the rights of the Company, or any of the
covenants, agreements, duties or obligations of Executive hereunder, and/or
otherwise to prevent the violation of any of the terms or provisions hereof, all
without the necessity of proving the amount of any actual damage to the Company
or any affiliate thereof resulting therefrom; provided, however, that nothing
contained in this SECTION 9 shall be deemed or construed in any manner
whatsoever as a waiver by the Company of any of the rights which the Company may
have against Executive at law, in equity, by statute or otherwise arising out
of, in connection with or resulting from the breach by Executive of any of his
covenants, agreements, duties or obligations hereunder.
10. MISCELLANEOUS.
10.1 ARBITRATION. The parties agree that they will use
their best efforts to amicably resolve any dispute arising out of or relating to
this Agreement. Any controversy, claim or dispute that cannot be so resolved
shall be settled by final binding arbitration in accordance with the rules of
the American Arbitration Association and judgment upon the award rendered by the
arbitrator or arbitrators may be entered in any court having jurisdiction
thereof. Any such arbitration shall be conducted in Los Angeles County,
California, or such other place as may be mutually agreed upon by the parties.
Within fifteen (15) days after the commencement of the arbitration, each party
shall select one person to act arbitrator, and the two arbitrators so selected
shall select a third arbitrator within ten days of their appointment. Each party
shall bear its own costs and expenses and an equal share of the arbitrator's
expenses and administrative fees of arbitration.
10.2 NOTICES. All notices, requests and other
communications (collectively, "NOTICES") given pursuant to this Agreement shall
be in writing, and shall be delivered by personal service or by United States
first class, registered or certified mail (return receipt requested), postage
prepaid, addressed to the party at the address set forth below:
If to Company:
Century Pacific Financial Corporation
000 Xxxx 00xx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: CEO
Fax: (000) 000-0000
If to Executive, at the address maintained for
Executive in the Company's payroll records.
Any Notice shall be deemed duly given when received by the
addressee thereof, provided that any Notice sent by registered or certified mail
shall be deemed to have been duly given three days from date of deposit in the
United States mails, unless sooner received. Either party may from time to time
change its address for further Notices hereunder by giving notice to the other
party in the manner prescribed in this section.
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10.3 ENTIRE AGREEMENT. This Agreement contains the sole
and entire agreement and understanding of the parties with respect to the entire
subject matter of this Agreement, and any and all prior agreements, discussions,
negotiations, commitments and understandings, whether oral or otherwise, related
to the subject matter of this Agreement are hereby merged herein. No
representations, oral or otherwise, express or implied, other than those
contained in this Agreement have been relied upon by any party to this
Agreement.
10.4 ATTORNEYS' FEES. If any action, suit or other
proceeding is instituted to remedy, prevent or obtain relief from a default in
the performance by any party of its obligations under this Agreement, the
prevailing party shall recover all of such party's costs and reasonable
attorneys' fees incurred in each and every such action, suit or other
proceeding, including any and all appeals or petitions therefrom.
10.5 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT
REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF.
10.6 CAPTIONS. The various captions of this Agreement are
for reference only and shall not be considered or referred to in resolving
questions of interpretation of this Agreement.
10.7 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument.
10.8 BUSINESS DAY. If the last day permissible for
delivery of any Notice under any provision of this Agreement, or for the
performance of any obligation under this Agreement, shall be other than a
business day, such last day for such Notice or performance shall be extended to
the next following business day (provided, however, under no circumstances shall
this provision be construed to extend the date of termination of this
Agreement).
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
Company: Executive:
CENTURY PACIFIC
FINANCIAL CORPORATION
/s/ Xxxxxx Xxxx /s/ Xxxxxx Xxxxxx
By: ------------------------------------ --------------------------------
Xxxxxx Xxxx, Chief Executive Officer Xxxxxx Xxxxxx
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