COFFEE PACIFICA INC. Suite 527, Building 5, 2920 Green Valley Parkway, Henderson, Nevada, 89014
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇
PRIVATE & CONFIDENTIAL
April 16, 2007
Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇.
Dear Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇:
This letter agreement (the "Agreement") sets forth the services to be provided by ▇▇▇▇▇ ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇") to Coffee Pacifica, Inc. (the "Company") and the terms and conditions under which such services shall be performed (the "Engagement").
1. Engagement. Subject to the terms set forth herein, the Company hereby engages ▇▇▇▇▇▇▇ and retains ▇▇▇▇▇▇▇ to serve as the Chief Executive Officer of the Company and ▇▇▇▇▇▇▇ hereby accepts the position of Chief Executive Officer effective as of April 16, 2007 (the "Effective Date").
2. Duties. ▇▇▇▇▇▇▇ will perform such duties customarily performed by the Chief Executive Officer and such other duties as reasonably requested by the Chairman or the Board of Directors of the Company (the "Board"). These duties will include, but not be limited to, signing SEC filings and certifications required by the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. It is understood that ▇▇▇▇▇▇▇ has other business interests and responsibilities but that he does not anticipate any significant time conflicts. ▇▇▇▇▇▇▇ will not accept any significant new engagements and will devote the time and attention necessary to fulfill these duties to the Company.
3. Term. The term of ▇▇▇▇▇▇▇'▇ Engagement hereunder is for thirty six (36) months unless terminated sooner in accordance with the provisions of Section 4 below. The term of ▇▇▇▇▇▇▇'▇ Engagement hereunder shall commence on the Effective Date and shall continue on for thirty six months and expire on April 1, 2010.
4. Termination The Company shall have the right to terminate ▇▇▇▇▇▇▇'▇ Engagement with the Company at any time with or without cause and with or without notice. In the event of termination prior to the end of a calendar month, the Company shall pay ▇▇▇▇▇▇▇ fees for the full month for the portion of the month that the Engagement was effective.
5. Compensation. The Company shall make monthly management fee payment of ten thousand dollars ($10,000) to ▇▇▇▇▇▇▇ or his private company Vogue International Coffee Products Brokers Inc., in arrears, on the 25th day of each month.
6. Bonus and Stock Options
(a) In further consideration of services to be rendered under this Agreement, ▇▇▇▇▇▇▇ shall be paid a contract execution bonus of one hundred thousand dollars ($100,000) upon execution of this Agreement.
(b) In further consideration of the services to be rendered under this Agreement, Company hereby grants ▇▇▇▇▇▇▇ a Stock Option. ▇▇▇▇▇▇▇ shall have an option to purchase up to three hundred thousand (300,000) shares of Company's Common Stock, prior to January 1, 2010, at an exercise price per share to be established by the Board (the " Stock Option"). The first one-third (1/3) of the Stock Option (100,000 shares) shall fully vest on the Effective Date and the remaining two-thirds (2/3) of the Stock Option (200,000 shares) shall fully vest on April 2, 2008. The said Stock Option shall be formalized in two separate Option Agreements between the Company and ▇▇▇▇▇▇▇ in accordance with the above-noted vesting dates.
7. Expense Reimbursement. ▇▇▇▇▇▇▇ will be entitled to reimbursement for reasonable out-of-pocket expenses incurred by Company or paid by ▇▇▇▇▇▇▇ on behalf of the Company including, but not limited to, use of office space, reproduction, typing, computer usage, employees, legal counsel (including legal counsel retained to negotiate and draft this Agreement) and other similar direct expenses and any and all taxes (other than state, local and federal income taxes) on any of the foregoing, provided, however, that such out-of-pocket expenses shall not exceed $1,000 per month without Board approval. Expenses for ordinary course travel on Company business will not be subject to the $1,000 monthly limitation. ▇▇▇▇▇▇▇ will be reimbursed within 30 days of submission of reasonable documentation for such expenses. In no event, will ▇▇▇▇▇▇▇ be reimbursed later than 30 days following the close of the calendar year in which such expenses were incurred.
8. Severance Payment.
(a) If the Company at its sole discretion terminates the Engagement anytime without cause, after the Effective Date, ▇▇▇▇▇▇▇ will receive a severance payment equal to $100,000. ▇▇▇▇▇▇▇ will not receive any severance payment if terminated by the Company anytime after the Effective Date with cause. "Cause" shall be defined as any act or series of acts which are illegal, negligent, constitute willful misconduct, immoral, or otherwise have impact on the Company and/or its business activities.
(b) If the Engagement is terminated by ▇▇▇▇▇▇▇ during the term of this Engagement, ▇▇▇▇▇▇▇ will be required to reimburse the Company pro-rata the contract execution bonus of one hundred thousand dollars ($100,000) for the portion of the remaining months of the Engagement. If the Engagement is terminated by Company during the term of this Engagement anytime without cause ▇▇▇▇▇▇▇ will not be required to reimburse the Company pro-rata the contract execution bonus of one hundred thousand dollars ($100,000) for the portion of the remaining months of the Engagement.
9. Deferred Compensation. Any nonqualified deferred compensation (within the meaning of Section 409A of the Internal Revenue Code) payable under this Agreement on account of the completion or termination of the Engagement shall be delayed to the minimum extent and in the minimum amount necessary so as to comply with Section 409A and the regulations thereunder; provided, however, that the bonus set forth in Section 5 shall be paid immediately if there is a change of control within the meaning of Section 409A of the Internal Revenue Code regardless of whether there is a termination.
10. Benefits and Taxes. ▇▇▇▇▇▇▇ shall be entitled to any benefits paid by the Company to its employees. ▇▇▇▇▇▇▇ shall be solely responsible for any tax consequences applicable to ▇▇▇▇▇▇▇ by reason of this Agreement and the services performed hereunder. The Company shall not be responsible for the payment of any federal, state or local taxes or contributions imposed under any employment insurance, social security, income tax or other tax law or regulation with respect to ▇▇▇▇▇▇▇'▇ performance of management services hereunder. ▇▇▇▇▇▇▇ agrees to indemnify and hold the Company harmless for any taxes, interest or penalties imposed upon the Company arising from or in connection with the Engagement.
11. Confidential Information, Rights and Duties.
(a) ▇▇▇▇▇▇▇ specifically agrees that he shall not at any time, either during or subsequent to the term of the Engagement, in any fashion, form or manner, either directly or indirectly, unless expressly consented to in writing by the Company, use, divulge, disclose or communicate to any person or entity any confidential information of any kind, nature or description concerning any matters affecting or relating to the business of the Company, including, but not limited to: the Company's sales and marketing methods, programs and related data, or other written records used in the Company's business; the Company's computer processes, programs and codes; the names, addresses, buying habits or practices of any of its clients or customers; compensation paid to other employees and independent contractors and other terms of any employment or contractual relationships; or any other confidential information of, about or concerning the business of the Company, its manner of operations, or other data of any kind, nature or description. The parties to this Agreement hereby stipulate that, as between them, the above information and items are important, material and confidential trade secrets that affect the successful conduct of the Company's business and its good will, and that any breach of any term of this section is a material breach of this Agreement. All equipment, notebooks, documents, memoranda, reports, files, samples, books, correspondence, lists or other written and graphic records, and the like, including tangible or intangible computer programs, records and data, affecting or relating to the business of the Company, which ▇▇▇▇▇▇▇ might prepare, use, construct, observe, posses or control, shall be and shall remain the Company's sole property.
(b) For purposes of this Agreement, the term "confidential information" shall not include any information that: (i) has been made public by the Company (other than by acts of ▇▇▇▇▇▇▇ in violation of this Agreement or other obligation of confidentiality); (ii) ▇▇▇▇▇▇▇ is legally compelled to disclose; provided that ▇▇▇▇▇▇▇ notifies the Company of such proposed disclosure in as far in advance of its disclosure as is practicable and uses his best efforts to obtain assurances that confidential treatment will be accorded to such information; or (iii) is otherwise publicly available other than through disclosure by a party in breach of a confidentiality obligation with respect thereto.
(c) Any wrongful interference with the Company's business, property, confidential information, trade secrets, clients, customers, employees or independent contractors by ▇▇▇▇▇▇▇ or any of their agents after the term of the Engagement shall be treated and acknowledged by the parties as a material breach of this Agreement.
(d) ▇▇▇▇▇▇▇'▇ duties under this Section 11 shall survive termination of the Engagement. ▇▇▇▇▇▇▇ acknowledges that a remedy at law for any breach or threatened breach by ▇▇▇▇▇▇▇ of the provisions of this Section 11 would be inadequate, and ▇▇▇▇▇▇▇ agrees that the Company shall be entitled to injunctive relief in case of any such breach or threatened breach.
12. Indemnification and D&O Insurance. The Company shall indemnify, forever defend, and hold ▇▇▇▇▇▇▇ free and harmless from any and all liabilities, assessments, obligations, debts, damages, fees, fines, penalties, interest, judgments, liens or other claims that may ever be claimed to exist against ▇▇▇▇▇▇▇ as a result of ▇▇▇▇▇▇▇'▇ work on behalf of Company and/or as a result of ▇▇▇▇▇▇▇ executing this Agreement, except to the extent resulting from ▇▇▇▇▇▇▇'▇ ▇▇▇▇▇ negligence or willful misconduct.
The Company shall enter into an indemnification agreement with ▇▇▇▇▇▇▇ in the form entered into with each of the Company's officers and directors. Such indemnification Agreement shall be effective upon the Effective Date. The Company will furnish ▇▇▇▇▇▇▇ with a copy of its current D&O liability policy and will agree to consult with ▇▇▇▇▇▇▇ if the Company intends to decrease the coverage currently provided.
13. Dispute Resolution In the instance of a dispute between the Company and ▇▇▇▇▇▇▇ that is incapable of being resolved by them to their mutual satisfaction, after good faith resolution negotiations, and within thirty (30) days of the formal notification from ▇▇▇▇▇▇▇ or Company of such dispute, the complaining ▇▇▇▇▇▇▇ shall have the right to seek such remedies as are available at law and in equity, as shall the Company. In the event of any breach of this Agreement, the provisions of this Agreement may be enforceable in a court of equity by a decree of specific performance. Any equitable remedy shall not be exclusive and shall be in addition to any other remedy available.
14. General Provisions.
(a) Notices. Any notices provided hereunder must be in writing and shall be deemed effective upon the earlier of personal delivery or duly sent by certified mail, postage prepaid; by an overnight delivery service, charges prepaid; or by confirmed telecopy, to the Company at its primary office location and to ▇▇▇▇▇▇▇ at the following address: ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇.
(b) Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provisions had never been contained herein or therein
(c) Waiver. If either party should waive any breach of any provision of this Agreement, he or it shall not thereby be deemed to have waived any preceding or succeeding breach of the same or any other provision of this Agreement.
(d) Complete Agreement. This Agreement, the stock option agreement and the indemnification agreement to be effective upon the Effective Date constitute the entire agreement between ▇▇▇▇▇▇▇ and the Company and it is the complete, final, and exclusive embodiment of their agreement and supersedes any prior agreement written or otherwise between ▇▇▇▇▇▇▇ and the Company with regard to this subject matter. It is entered into without reliance on any promise or representation other than those expressly contained herein or therein, and it cannot be modified or amended except in a writing signed by ▇▇▇▇▇▇▇ and the Chairman of the Board. This Agreement supersedes the agreement dated July 1 2006 between Company and ▇▇▇▇▇▇▇. Upon execution this Agreement the July 1, 2006 agreement is terminated.
(e) Headings. The headings of the sections hereof are inserted for convenience only and shall not be deemed to constitute a part hereof or thereof nor to affect the meaning thereof.
(f) Successors and Assigns. This Agreement is intended to bind and inure to the benefit of and be enforceable by ▇▇▇▇▇▇▇ and the Company and their respective successors, assigns, heirs, executors and administrators, except that ▇▇▇▇▇▇▇ may not assign any of their duties hereunder and may not assign any of their rights hereunder without the written consent of the Company.
(g) Attorney Fees. If either party hereto brings any action to enforce his or its rights hereunder, the prevailing party in any such action shall be entitled to recover his or its reasonable attorneys' fees and costs incurred in connection with such action. In no event, will a party entitled to reimbursement be reimbursed later than thirty days following the close of the calendar year in which in such action is finally resolved.
(h) Arbitration. To provide a mechanism for rapid and economical dispute resolution, ▇▇▇▇▇▇▇ and the Company agree that any and all disputes, claims, or causes of action, in law or equity, arising from or relating to this Agreement or its respective enforcement, performance, breach, or interpretation, will be resolved, to the fullest extent permitted by law, by final, binding, and confidential arbitration before a single arbitrator held in Las Vegas, Nevada and conducted by Judicial Arbitration & Mediation Services/Endispute ("JAMS"), under its then-existing Rules and Procedures. The parties shall be entitled to conduct adequate discovery, and they may obtain all remedies available to the parties as if the matter had been tried in court. The arbitrator shall issue a written decision which specifies the findings of fact and conclusions of law on which the arbitrator's decision is based. Judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. Unless otherwise required by law, the arbitrator will award reasonable expenses (including reimbursement of the assigned arbitration costs) to the prevailing party. Nothing in this Section 12(h) or in this Agreement is intended to prevent ▇▇▇▇▇▇▇ or the Company from obtaining injunctive relief in court to prevent irreparable harm pending the conclusion of any such arbitration.
(i) Governing Law. All questions concerning the construction, validity and interpretation of this Agreement will be governed by the law of the Nevada as applied to contracts made excluding the rules on conflicts of law.
(j) Currency. All dollar amounts stated in this Agreement are in United States dollars.
If you are in agreement with the terms set forth herein, please sign and return a copy of this Agreement to me.
Yours truly
/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
_______________________________
COFFEE PACIFICA, INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ on Behalf of the Board
Agreed to and Accepted
/S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
___________________________
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