Exhibit 10.12
Evolve One, Inc.
0000 X. Xxxxxxx Xxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
EMPLOYMENT AGREEMENT
Xx Xxx
This EMPLOYMENT AGREEMENT ("Agreement"), dated August 16, 2006, is by and
between Evolve One, Inc. ("EVOO"), having its main office at 0000 X. Xxxxxxx
Xxx, Xxxxx 000, Xxxx Xxxxx, XX 00000, and Xx Xxx ("Xxxxx Xxx" or "Employee").
NAME: Xx Xxx Date of Birth: 12/31/1972
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Tax I.D. #: ###-##-####
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Passport #:
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Visa #: N/A
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Address: 000 Xxxxxxx Xxxxxxxxx, Xxx 000
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Xxxxxx Xxxxx, XX 00000
Phone#: 000-000-0000
Email: xxxx00@xxxxxxx.xxx
WHEREAS, on August __, 2006 the Company entered into a stock exchange
agreement (the "Stock Exchange Agreement") with China Direct Investments, Inc.,
a Florida corporation ("China Direct") which was accounted for as a reverse
acquisition of the Company by China Direct, with the business and operations of
China Direct becoming the business and operations of the Company
WHEREAS, as a result of the Stock Exchange Agreement, the Company is
now engaged in the business of developing business opportunities in China;
WHEREAS, at the time of the Stock Exchange Agreement Xxxxx Xxx was a
party to an employment agreement dated June 5, 2006 with China Direct (the
"Prior Agreement");
WHEREAS, pursuant to the terms of the Stock Exchange Agreement the
Prior Agreement would be cancelled and Xxxxx Xxx and the Company would enter
into a new employment agreement upon terms and conditions substantially similar
to the Prior Agreement; and
WHEREAS, the Company desires to employ Employee and to enter into an
Agreement embodying the terms of such employment; and
WHEREAS, Employee desires to accept such employment and enter into s
uch Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants herein
and for other good and valuable consideration, the parties agree as follows:
1. Term of Employment. Employee shall be employed by the Company for a period
commencing as of August 16, 2006 (the "Commencement Date") and ending June 1,
2007 (the "Employment Term") on the terms and subject to the conditions set
forth in this Agreement.
2. Position and Location.
A. Position. Effective on the Commencement Date, Employee shall serve as the
Vice President of Finance of the Company. At all times, Employee shall have such
duties and authority as are commensurate with her then position and shall report
to the management of the Company. Employee represents and warrants to the
Company that she is free to accept employment with the Company as contemplated
herein and has no other written or oral obligations or commitments of any kind
or nature which would in any way interfere with her acceptance of employment
pursuant to the terms hereof or the full performance of her obligations
hereunder or the exercise of her best efforts in her employment hereunder. In
the event that Employee is not retained by the Company or by the Board of
Directors as the Vice President of Finance of the Company during the term
hereof, the Company will not deemed to be in breach of this Agreement.
B. Time Devoted. During the Employment Term, Employee will devote such time and
efforts as may be necessary or appropriate to fulfill her duties and
responsibilities hereunder. The Employee agrees to devote all of her time and
efforts to the performance of her duties as an employee of EVOO and, during her
employment by EVOO, shall not, directly or indirectly, act for the benefit of
any person, firm or corporation other than EVOO. The Employee also agrees that
she is not now, nor will she be, concerned, connected or otherwise affiliated
with any other business pursuit whatsoever without the prior written consent of
EVOO.
C. Principal Offices. Unless otherwise mutually agreed by the parties,
Employee's principal offices shall be located at the Company's headquarters in
Palm Beach County or surrounding counties in Florida.
D. Compliance with Laws. Employee acknowledges that the Company is subject to
various laws, statutes and high ethical standards by reason of the nature of its
business activities, and Employee agrees to fully comply with all laws, rules
and statutes and ethical standards applicable to the Company.
3. Employee Benefits. During the Employment Term, Employee shall be entitled to
participate in the Company's employee benefit plans as in effect from time to
time. During each fiscal year of the Company, Employee shall be entitled to
reasonable vacation time, provided that the Employee shall evidence reasonable
judgment with regard to appropriate vacationing scheduling. Subject to the
foregoing, Employee shall be entitled to vacation time as delineated in the
Employee Handbook, with any unused vacation time to lapse as of the conclusion
of the related fiscal year, unless the Board of Directors shall authorize the
accruing of such unused vacation time.
4. Business Expenses. During the Employment Term, reasonable business expenses
incurred by Employee in the performance of Employee's duties hereunder shall be
reimbursed by the Company in accordance with Company policies.
5. Compensation.
A. Salary Compensation: The Employee shall receive an annual salary of Sixty
Thousand Dollars ($60,000), paid monthly on the 1st calendar day of each month
of employment. EVOO shall deduct from amounts to which the Employee is entitled
all applicable federal, state and local taxes and other charges, which it may
now or hereafter be required to deduct as a matter of law or otherwise within
the discretion of EVOO, so long as the exercise of such discretion is permitted
under applicable federal and state law.
B. Security Compensation: Under the terms of the Prior Agreement, China Direct
had granted the Employee options to purchase an aggregate of 48,000 shares of
its common stock, which vested over a five year period (the "CDI Options").
Pursuant to the terms of the Stock Exchange Agreement, the CDI Options were
exchanged for options to purchase shares of EVOO's common stock upon the same
terms and conditions as the CDI Options, as follows: EVOO shall grant to the
employee options purchase 48,000 shares of common stock. The options will be
exercisable at $2.50 per share. The options will vest on June 5, 2007, so long
as the employee remains employed with EVOO.
C. Bonus Compensation: EVOO shall in its own discretion award the Employee with
additional forms of compensation. This additional compensation will be awarded
in the sole discretion of EVOO and may be in the form of securities or cash.
6. Representations and Warranties. The Employee hereby represents, warrants and
agrees that: (i) she has required the necessary approval to be employed by EVOO.
(ii) all statements, representations and warranties made by her in the
Employment Application Form in connection with her employment by and association
with EVOO, are true, correct and complete in all respects; and (iii) she is
under no contractual or other restriction or obligation that would be violated
by her employment by EVOO. Furthermore, Employee agrees to notify the Human
Resources Department promptly (Within 5 business days) if the information
furnished in your Employee Application Form or Employee Contact Form has
changed. The EVOO Employee Contact Form serves as a valuable tool to maintain
communication with all employees; promptly update your EVOO Employee Contact
Form if there are any changes.
7. Compliance with Laws. The Employee hereby agrees that, so long as she is
employed by EVOO, she will comply with all statutes, laws, rules and regulations
of the SEC or various securities exchanges to which EVOO is, or may become in
the future, a member and all other applicable federal, state and local agencies
and authorities, as well as all written internal rules, regulations and
procedures established by EVOO and in effect and subject to change from time to
time. The Employee also agrees that she will promptly notify, no later than one
(1) business day, the highest ranking EVOO Employee as reflected on the
organizational chart in the event she becomes aware of or is put on notice
concerning any violation of or non-compliance with any of the above laws, rules
or regulations or the commencement of any action, suit, proceeding or
investigation involving her or EVOO. Without limiting the foregoing, the
Employee hereby acknowledges that she has received a copy of EVOO's Employee
Handbook, has both read and understood such policies and will comply with same
in all respects.
8. Confidentiality. The Employee acknowledges and agrees that, during the period
of her employment by EVOO, she will have access to confidential, proprietary,
strategic and sensitive information relating to EVOO's business and affairs and
the business and affairs of its affiliates and clients, including, without
limitation, materials used for identifying clients, client information and
lists, information concerning ongoing and potential assignments, internal
operating procedures, business plans, projections, valuations techniques,
financial models and research data. The Employee also acknowledges and agrees
that such information is special and unique to EVOO and its affiliates and
clients. The Employee hereby agrees and convenes that, without EVOO's prior
written permission, she will not, directly or indirectly, publish, disclose or
make accessible to any other person, firm, corporation, organization or entity,
including, without limitation, any member of her family, either during or after
the period she is employed by EVOO, any confidential, proprietary, strategic or
sensitive information whatsoever relating, directly or indirectly, to EVOO's
clients, including such clients' names, business, or affairs or the business or
affairs of any of EVOO's affiliates or clients, that she may learn or initiate
and develop a business relationship with during her employment by EVOO, whether
or not such information is specifically designated as confidential, proprietary,
strategic or sensitive. In addition, the Employee agrees to return to EVOO all
tangible evidence of such information in their original form (paper, electronic
or magnetic), which may be in her possession, custody or control prior to or at
the termination of her employment.
Employee will not at any time (whether during or after Employee's employment
with the Company) disclose or use for Employee's own benefit or purposes or the
benefit or purposes of any other person, firm, partnership, joint venture,
association, corporation or other business organization, entity or enterprise
other than the Company and any of its subsidiaries or affiliates, any trade
secrets, information, data or other confidential information relating to
customers, development programs, costs, marketing, trading, investment, sales
activities, promotion, credit and financial data, manufacturing processes,
financing methods, plans or the business and affairs of the Company, generally,
or of any subsidiary or affiliate of the Company, except in the performance of
her duties hereunder or in compliance with legal process; provided, however,
that the foregoing shall not apply to information which is not unique to the
Company, or which is generally known to the industry or the public other than as
a result of Employee's breach of this covenant. In the event that Employee is
compelled by legal process to disclose confidential information, he shall give
prompt written notice to the Company to allow the Company the opportunity to
object to or otherwise resist such order. Employee agrees that upon termination
of Employee's employment with the Company for any reason, he will return to the
Company immediately all memoranda, books, papers, plans, information, letters
and other data, and all copies thereof or therefrom in any way relating to the
business of the Company and its affiliates, except that he may retain personal
notes, notebooks and diaries that do not contain confidential information of the
type described in the preceding sentence. Employee shall be bound by the
nondisclosure provisions of this Section 8. Employee further agrees that he will
not retain or use for Employee's account at any time any trade names, trademark
or other proprietary business designation used or owned in connection with the
business of the Company or its affiliates.
9. Non-Solicitation. The Employee hereby further agrees that, for a period of
five (5) years after the effective date of the termination of her employment by
EVOO for any reason (or for no reason), she shall not, directly or indirectly,
do any of the following: (i) reveal the name of, contract, solicit, persuade,
interfere with or endeavor to entice away from EVOO or any of its affiliates,
any of their respective clients, agents, representatives or employees; or (ii)
employ or offer to employ any person who, at any time up to the effective date
of such termination, was an employee, agent or representative employed or
retained by EVOO or any of its affiliates within a period of one(1) year after
such person is no longer employed or retained by EVOO or any of its affiliates.
Provided, however, that the restriction set forth in clause (i) above shall not
apply to the solicitation of any of the clients serviced by the Employee while
employed at EVOO. The parties hereto agree that nothing in this Agreement shall
restrict or prohibit EVOO from soliciting any or all clients serviced by the
Employee while she was employed at EVOO.
10. Arbitration; Temporary and Provisional Relief. In consideration of her
employment by EVOO, the Employee hereby understands and agrees to submit to
final and binding arbitration any and all claims, controversies and disputes of
any nature whatsoever arising out of or related in any way to this Agreement or
to her employment by EVOO, including, without limitation, any and all claims,
controversies and disputes related to her hiring, the terms of her employment or
the termination of her employment. The Employee specifically agrees, without
limiting the interpretation of this section, to forego litigation and to submit
to binding arbitration all claims, controversies and disputes under the
following: 1) Title VII (Equal Employment Opportunity Act); 2) the Federal Age
Discrimination Employment Act (ADEA), 3) any other applicable employment or
human rights laws, rules and regulations, including, without limitation, any
city and state laws; and 4) the Employee Retirement Income Security Act (ERISA).
Said arbitration shall be under the rules and auspices of a third party which
EVOO, in its sole discretion, shall elect.
11. Notwithstanding the provision of Section 10 above, in connection with any
breach by the Employee of the Sections above, the Employee hereby understands
and agrees that EVOO may, at any time prior to the initial arbitration hearing
pertaining to such dispute or controversy, seek, by application to the United
States District Court for the of Florida or the Supreme Court of the State of
Florida for the County of Palm Beach, any such temporary or provisional relief
or remedy provided for by the laws of the United States of America or the laws
of the State of Florida as would be available in an action based upon such
dispute or controversy in the absence of an agreement to arbitrate. The parties
acknowledge and agree that it is their intention to have any such application
for temporary or provisional relief decided by the court to which it is made and
that such application shall not be referred to, removed to or settled by
arbitration. No such application to said court for temporary or provisional
relief, nor any act or conduct by either party in furtherance of or in
opposition to such application, shall constitute a relinquishment or waiver of
any right to have the underlying dispute or controversy, with respect to which
such application is made, subject to final and binding arbitration in accordance
with Section 10 above.
In the event of an arbitration or federal or state court proceeding between EVOO
and the Employee, EVOO will have the right to seek from the Employee reasonable
attorneys' fees and any and all fees, costs, expenses and disbursements incurred
in respect of any such arbitration or federal or state proceeding.
12. Indemnification. The Employee hereby agrees that she will be responsible
for, will pay and will fully indemnify EVOO for, and will hold EVOO harmless
from any and all losses, claims, damages, penalties, judgments, awards,
liabilities, cost, expenses and disbursements, including, without limitation,
attorney's fees and the fees, costs, expenses and disbursements incurred in
respect of any action, suit, proceeding or investigation, incurred by EVOO based
upon, arising out of or in connection with: (i) any error which occurs as a
result of the actions of Employee; (ii) the Employee's failure to comply with
instructions received from any customer client or professional resource
including but not limited to resources both internal and external to EVOO (iii)
the Employee's failure to comply with any provision of any applicable federal or
state securities or other law, rule or regulation, internal rules, policies or
procedures, as described above; and (iv) the Employee's failure to comply with
any provision of this Agreement. EVOO agrees that the Employee's indemnification
will pertain solely to accounts and customers directly serviced by the Employee.
Without limiting the generality of the foregoing, the Employee shall be directly
and primarily liable to EVOO for the failure of any customer or client serviced
by the Employee to deliver to EVOO any and all securities or funds required to
properly close or settle any securities sale or purchase transaction. The
Employee expressly understands and agrees that EVOO shall be entitled to deduct
from any Compensation due, Salary or otherwise, to the Employee as a result of
the provisions of this Section 11.
13. Authority. The Employee shall have no authority to assume or create any
obligation or responsibility whatsoever, express or implied, on behalf of, or in
the name of, EVOO, China Direct Investments, Inc. or any affiliate or clients.
14. Survival. The covenants, agreements, representations, and warranties
contained in or made pursuant to this Agreement shall survive the Employee's
termination of employment, irrespective of any investigation made by or on
behalf of any party.
15. Termination.
A. By Company for Cause, Death or Disability or by Employee's Voluntary
Resignation.
i. The Employment Term and Employee's employment hereunder may be terminated by
the Company for Cause, Death or Disability and shall terminate automatically
upon Employee's resignation.
ii. For purposes of this Agreement, "Cause" shall mean (A) willful malfeasance
or willful misconduct by Employee in connection with his employment, (B) failure
of Employee to perform his material duties under this Agreement after notice of
his failure to so perform, written or otherwise (other than as a result of
physical or mental incapacity), (C) Employee's material willful and knowing
breach of the Agreement that remains uncured for a period of ten (10) business
days following Employee's notice from the Company describing such breach,
written or otherwise (D) committing or participating in an injurious act, gross
neglect or material omission of responsibilities hereunder after notice thereof,
written or otherwise, which remains uncured for a period of ten (10) business
days following Employee's receipt of notice from the Company, written or
otherwise, describing such breach; or (E) engaging in a criminal enterprise
involving moral turpitude, embezzlement, or conviction of an act or acts
constituting a felony under the laws of the United States or any state thereof.
For the purposes of this Agreement, no act, or failure to act, on Employee's
part shall be considered "willful" unless done or omitted to be done by him not
in good faith and without reasonable belief that his action or omission was in
the best interests of the Company. The date of termination for a termination for
Cause shall be the date indicated in the Notice of Termination.
iii. For purposes of this Agreement, "Disability" shall mean Employee's
inability to perform his material duties for a period of at least three (3)
consecutive months or an aggregate of five (5) months in any twenty-four (24)
month period as a result of a physical or mental incapacity. The Company may
terminate Employee due to Disability on thirty (30) days prior written notice
given during the period Employee is unable to perform his material duties as a
result of a physical or mental incapacity; provided, however, that Employee has
not returned to the performance of his material duties prior to the end of the
applicable three (3) month or five (5) month period described above.
iv. If Employee's employment is terminated by the Company for Cause, Death or
Disability or if Employee resigns, Employee shall be entitled to receive the
following benefits:
(i) the Base Salary through the date of termination;
(ii) any Sign-On or Annual Bonus earned, but unpaid, as of the date of
termination for any previously completed fiscal year;
(iii) reimbursement for any unreimbursed business expenses incurred by Employee
in accordance with Company policy prior to the date of Employee's termination;
and
(iv) such Employment Benefits, if any, as to which Employee may be legally
entitled under the employee benefit plans and equity plans of the Company (the
amounts described in clauses (A) through (D) hereof being referred to as the
"Accrued Rights").
Following such termination of Employee's employment by the Company for Cause,
Death or Disability or resignation by Employee, except as set forth in this
Section, Employee shall have no further rights to any compensation or any other
benefits under this Agreement or any other severance plan, severance policy or
severance arrangement of the Company or its affiliates, except as provided in
this Agreement.
B. By the Company Without Cause.
i. The Employment Term and Employee's employment hereunder may be terminated by
the Company without Cause.
ii. If Employee's employment is terminated by the Company without Cause (other
than by reason of Death or Disability), Employee shall be entitled to:
iii. receive the Accrued Rights; and
iv. receive continued payment of the Base Salary until the earlier of six (6)
months or the expiration of the Employment Term determined as if such
termination had not occurred.
Following Employee's termination of employment by the Company without Cause
(other than by reason of Employee's Death or Disability) or by Employee's
resignation, except as set forth in this Section 6.b.(ii), Employee shall have
no further rights to any compensation or any other benefits under this Agreement
or any other severance plan, severance policy or severance arrangement of the
Company or its affiliates except as provided in this Agreement.
C. Expiration of the Employment Term. If Employee and the Company have not
mutually agreed to extend the Employment Term, the Company and Employee have not
entered into a new employment agreement, the Employment Term and Employee's
employment with the Company shall terminate on June 1, 2007, and such
termination shall not be considered a termination by the Company without Cause.
D. Notice of Termination. Any purported termination of employment by the Company
or by Employee (other than due to Employee's Death or Disability) before the
expiration of the Employment Term shall be communicated by written Notice of
Termination to the other party hereto in accordance with Section 19.G. hereof.
For purposes of this Agreement, a "Notice of Termination" shall mean a notice
which shall indicate the specific termination provision relied upon and shall
set forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of employment under the provision so indicated, unless the
notice is provided pursuant to Section 1 hereof.
16. Modification. This Agreement sets forth the entire understanding of the
parties with respect to the subject matter hereof, supersedes all existing
agreements between them concerning such subject matter and may be modified only
by a written instrument duly executed by each party hereto.
17. Waiver. Any waiver by either party of a breach of any provision of this
Agreement shall not operate as or be construed to be waiver of any other breach
of such provision or of any breach of any other provision of this Agreement. The
parties hereto expressly understand and agree that failure of a party to insist
upon strict adherence to any term of this Agreement on one or more occasions
shall not be considered a waiver or deprive that party of the right thereafter
to insist upon strict adherence to that term or any other term of this
Agreement. Any waiver by either party must be agreed to by the other party and
in writing.
18. Assignment; Binding Effect. The Employee's rights and obligations under this
Agreement shall not be transferable by assignment or otherwise, such rights
shall not be subject to commutation, encumbrance, or the claims of The
Employee's creditors, and any attempt to do any of the foregoing shall be void.
The provisions of this Agreement shall be binding upon an insure to the benefit
of the Employee and her heirs and personal representatives, and shall be binding
upon and insure to the benefit of EVOO and its successors and assigns.
19. Miscellaneous. This is not an employment agreement for a specified term. The
Employee expressly acknowledges that her employment by EVOO is "at will," and
that nothing contained herein shall confer upon her any right to continue in the
employ of EVOO or interfere in any way with the right of EVOO to terminate her
employment at any time for any reason (or for no reason). The Employee agrees
that the existence of this Agreement, and the terms and conditions hereof, shall
be kept strictly confidential and shall not be disclosed to any person, entity
or organization, except pursuant to court order, regulatory request or to EVOO
senior management or to the Legal/Compliance Department. China Direct
Investments, Inc. and their respective officers, directors, shareholders,
partners, principals and employees.
A. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida without regard to conflicts of
laws principles thereof.
B. Entire Agreement/Amendments. This Agreement contains the entire understanding
of the parties with respect to the employment of Employee by the Company. There
are no restrictions, agreements, promises, warranties, covenants or undertakings
between the parties with respect to the subject matter herein other than those
expressly set forth herein. This Agreement may not be altered, modified or
amended except by written instrument signed by the parties hereto.
C. No Waiver. The failure of a party to insist upon strict adherence to any term
of this Agreement on any occasion shall not be considered a waiver of such
party's rights or deprive such party of the right thereafter to insist upon
strict adherence to that term or any other term of this Agreement.
D. Severability. In the event that any one or more of the provisions of this
Agreement shall be or become invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions of this
Agreement shall not be affected thereby.
E. Successors; Binding Agreement. This Agreement shall be binding upon the
parties hereto, their heirs, legal representatives, successors and assigns. This
Agreement shall not be assignable by Employee, but shall be assignable by the
Company in connection with the sale, transfer or other disposition of its
business or to any of the Company's affiliated, controlled or other companies
under common control with the Company.
F. Headings. The headings of this Agreement are for convenience only and shall
not control or affect the meaning or construction or limit the scope or intent
of any of the provisions of this Agreement.
G. Notice. For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered by hand or overnight courier or
three days after it has been mailed by United States registered mail, return
receipt requested, postage prepaid, addressed to the respective addresses set
forth below, or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notice of change of address
shall be effective only upon receipt.
If to the Company: Evolve One, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
If to Employee: To the most recent address of Employee set
forth in the personnel records of
the Company.
H. Independent Counsel. The Company and Employee agree that each of them have
been, or were advised and fully understand, that they are entitled to be
represented by independent legal counsel with respect to all matters
contemplated herein from the commencement of negotiations at all times through
the execution hereof.
The parties hereto understand and agree that this Agreement is contingent upon
the successful completion of a standard third party background investigation,
based on the employment application the Employee will complete upon starting her
employment.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
ACCEPTED AND AGREED TO:
Evolve One, Inc.
Xx Xxx
/s/ Xxxxx Xxxxxx /s/ Xx Xxx
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(sign name) (sign name)
Xxxxx Xxxxxx
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(print name) (print name)
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(date) (date)
