EXECUTIVE EMPLOYMENT AGREEMENT
THIS
EXECUTIVE EMPLOYMENT AGREEMENT
(this
“Agreement”)
is
dated as of July 17, 2008 (the “Effective
Date”),
by
and between PowerRaise Inc. (the “Company”),
and
Xxxxx Xxxxxxx (the “Executive”).
WHEREAS,
the
Executive has been appointed by the Company as Chief Financial Officer as of
the
Effective Date; and
WHEREAS,
in
recognition of the Executive’s performance and abilities, the Company desires to
assure itself of, and to provide for the employment of Executive on the terms
and conditions set forth herein; and
WHEREAS,
the
Executive agrees to be employed by the Company and to perform services for
the
Company in accordance with the terms and conditions provided
herein.
NOW
THEREFORE,
in
consideration of the promises and the respective covenants and agreements of
the
parties herein contained, and intending to be legally bound hereby, the parties
hereto agree as follows:
1. Employment.
The
Company hereby employs Executive, and Executive hereby accepts such employment,
according to the terms and conditions set forth in this Agreement.
2. Position
and Duties.
During
the Term (as defined in Section 3 herein), the Executive agrees to serve as
Chief Financial Officer of the Company and to perform operational and financial
management of the Company and such other reasonable duties, consistent with
his
position, as may be assigned to him from time to time by the Board of Directors
(the “Board”)
or the
Chief Executive Officer (the “CEO”)
of the
Company. The Executive shall report to the Board or the CEO, and shall be given
such authority as is appropriate to carry out the duties described herein.
The
Executive shall devote as much time as necessary to the performance of his
duties hereunder.
3. Term
of Agreement.
Subject
to the provisions of Section 6 of this Agreement, Executive shall be employed
by
the Company for a period commencing on the Effective Date and ending on the
termination hereof (the “Term”) on the terms and subject to the conditions set
forth in this Agreement.
4. Compensation.
Executive shall be entitled to compensation pursuant to this Agreement which
shall include (i) $3,000 for each quarterly report filing of the Company with
the Securities and Exchange Commission (the “SEC”)
plus
$5,000 for the each annual report filing with the SEC (collectively, the
“Base
Salary”),
and
(ii) 100,000 restricted, fully paid and non-assessable shares of the Company’s
common stock (the “Stock
Compensation”).
Each
payment of the Base Salary shall be made to the Executive promptly upon receipt
of an invoice. In addition to the Base Salary, the Company shall pay the
Executive for any additional work to be performed by the Executive on behalf
of
the Company, including, without limitation, any services provided by the
Executive in connection with special accounting or regulatory requirements
of
the Company or other financial reporting obligations and current reports to
the
SEC on Form 8-K.
5. Expenses.
The
Executive is entitled to receive prompt reimbursement for all normal and
reasonable expenses incurred while performing services under this Agreement,
including all reasonable travel expenses. Reimbursement for these expenses
will
be made as soon as administratively feasible after the date the Executive
submits appropriate evidence of expenditures.
6. Termination
of Employment.
The
Executive’s employment hereunder may be terminated without breach of this
Agreement as follows:
a. Termination
for Cause; Resignation without Good Reason.
At any
time, the Company may terminate the Executive’s employment hereunder for Cause
(as defined in this Section 6) or the Executive may voluntarily terminate his
employment hereunder without Good Reason (as defined in this Section 6). In
such
event, the Term will end on the date of any such termination.
For
purposes of this Agreement, “Cause”
shall be
defined as any of the following actions by the Executive: (i) a material breach
by the Executive of his obligations under this Agreement, (ii) the continuing
and willful refusal or failure (other than during reasonable periods of illness,
disability or vacation) by Executive to perform his duties or take any action
hereunder or under any lawful and reasonable direction of the Board, a duly
constituted committee of the Board, or the CEO of the Company, (iii) Executive’s
habitual drunkenness or any substance abuse which, in either case, adversely
affects the Executive’s performance of his job responsibilities, provided such
actions (if capable of being remedied) are not remedied within thirty (30)
days
after receipt by the Executive of written notice from the Company specifying
the
nature of such actions, (iv) charging of Executive of a felony by means of
indictment or similar action, including, without limitation, filing of a
criminal information, commencing a criminal felony proceeding against Executive
if, in the judgment of the Board, such charging of the Executive would
substantially interfere with the effectiveness of the Executive as Chief
Financial Officer of the Company, or conviction of Executive of a felony or
plea
by the Executive of guilty or nolo contendere
with
respect to a felony charge, (v) Executive’s commission of a fraud, theft against
or embezzlement from the Company, (vi) any intentional misconduct by the
Executive (other than misconduct undertaken at the express direction of the
Board) which would in the good faith opinion of the Board or the Company’s
counsel tend to make the Company liable to any person under any state or federal
law relating to sexual harassment or age, sex or other prohibited
discrimination, provided that such actions (if capable of being remedied) are
not remedied, within thirty (30) days after receipt by the Executive of written
notice from the Company specifying the nature of such actions, (vii) any
intentional and continuous violation in any material respect of any written
policy of the Company or any successor entity adopted in respect to any law
referred to in clause (vi) above, (viii) any conduct which, in the good faith
opinion of the Board or the Company’s counsel, the Executive knows or should
know (either as a result of a prior warning by the Company or the flagrant
nature of the conduct) violates applicable law or causes the Company to violate
applicable law, or (ix) any intentional violation of Section 7 or 8 hereof
by
Executive. The Company’s continued employment of Executive shall not constitute
consent to, or a waiver of rights with respect to, any circumstance constituting
Cause hereunder.
For
purposes of this Agreement, “Good
Reason”
shall
mean any one or more of the following: (a) a material reduction in the
Executive’s position, duties or responsibilities; (b) a reduction in the
Executive’s Base Salary as in effect immediately prior to such reduction or
other compensation or benefits pursuant to this Agreement; (c) the failure
of
any successor to the Company to expressly assume and honor this Agreement in
full; (d) a material breach by the Company of its obligations under this
Agreement; or (e) the termination, dissolution, complete or substantial
liquidation of the Company. Notwithstanding any provision to the contrary,
in
order for any event(s) in subparagraphs (a) through (e) above to constitute
“Good Reason” for purposes of this Agreement, (i) the Executive must notify the
Company in writing within thirty (30) days following the occurrence of the
event(s) giving rise to Good Reason (which event(s) must be described by the
Executive in reasonable detail in such notice) and (ii) within thirty (30)
days
after receiving notice from the Executive, the Company must fail to cure the
circumstances giving rise to Good Reason.
In
the
event that the Executive’s employment is terminated by the Company for Cause, or
the Executive resigns from his employment without Good Reason, the Executive
shall receive severance compensation amounting to any Base Salary accrued but
unpaid as of the effective date of termination (the “Accrued
Amounts”).
b. Termination
Without Cause; Resignation for Good Reason.
The
Company may terminate the Executive’s employment hereunder Without Cause, and
the Executive may terminate his employment hereunder for Good Reason, upon
thirty (30) days prior written Notice of Termination as defined herein Section
6.d., in each case the Term ending on the Date of Termination as defined herein
in Section 6.e.
c. Termination
Upon Death or Disability.
The
Executive’s employment hereunder shall terminate upon his death or may be
terminated at the Board’s sole discretion upon Executive’s failure to perform
his responsibilities to the Company on a full-time basis for forty-five (45)
calendar days in any consecutive twelve (12) months period as a result of
Executive's mental or physical illness or injury (hereinafter a “Disability”).
If
the Executive’s employment is terminated due to his death or Disability, the
Company shall provide the Executive or his legal representative, as the case
may
be, any accrued or vested compensation, including accrued amounts through the
“Date of Termination” (as hereafter defined) and reimbursement for unpaid
business expenses through such date.
d. Notice
of Termination.
Any
termination of the Executive’s employment by the Company (other than termination
upon death of the Executive), or by the Executive shall be communicated by
written Notice of Termination by such party to the other. For purposes of this
Agreement, a “Notice of Termination” shall mean a notice that indicates the
specific termination provision in this Agreement relied upon and shall set
forth
in reasonable detail the facts and circumstances claimed to provide a basis
for
termination of the Executive’s employment under the provision so indicated (as
applicable).
e. Date
of Termination.
“Date
of Termination” shall mean (i) if the Executive’s employment is terminated by
his death, the date of his death, or (ii) if the Executive’s employment is
terminated pursuant to any of the other terms set forth above, the date
specified in the Notice of Termination.
f. Cooperation
after Termination.
Following termination of the Executive’s employment, upon request of the
Company, the Executive shall reasonably cooperate with the Company in all
matters relating to the winding up of pending work on behalf of the Company
and
the orderly transfer of work to other employees of the Company. In the case
of
termination of the Executive’s employment because of the expiration of the Term
of this Agreement, a termination without Cause, or the Executive’s resignation
for Good Reason, the Executive will be compensated by the Company for such
services at a rate of remuneration to be mutually agreed upon by the parties.
The Executive shall also reasonably cooperate in the defense of any action
brought by any third party against the Company that relates in any way to the
Executive’s acts or omissions while employed by the Company, provided that any
such cooperation shall be at the reasonable expense of the Company and at a
rate
of remuneration to be mutually agreed upon by the parties.
7. Company
Policies.
a. Executive
understands that the provisions of any employee handbooks, personnel manuals
and
any and all other written statements of or regarding personnel policies,
practices or procedures that are or may be issued by the Company or any official
or department thereof from time to time (the “Company
Policies”)
do not
and shall not constitute a contract of employment and do not and shall not
create any vested rights; that any such provisions may be changed, revised,
modified, suspended, canceled, or eliminated by the Company at any time, in
its
sole discretion, with or without notice; and that such provisions constitute
guidelines only and may be disregarded either in individual or company-wide
situations when, in the sole opinion and judgment of the Company, circumstances
so require.
b. Executive
shall comply with all applicable Company Policies, which may be in effect from
time to time during the term of this Agreement. Notwithstanding the foregoing,
in the event of a conflict between any such Company Policies and the terms
of
this Agreement, the terms of this Agreement shall govern. If a provision in
any
policy conflicts with this Agreement, the terms of this Agreement shall prevail.
8. Non-Solicitation;
Confidentiality.
a. Non-Solicitation.
During
the Term and for the period of one year (1) year thereafter, the Executive
agrees that he will not, directly or indirectly, (i) solicit, divert or recruit
or encourage any of the employees of the Company, or any person who was an
employee of the Company during the Term, to leave the employ of the Company
or
terminate or alter their contractual relationship in a way that is adverse
to
the Company's interests, (ii) solicit or divert business from the Company,
or
assist any person or entity in doing so or attempting to do so or (iii) cause
or
seek to cause any person or entity to refrain from dealing or doing business
with the Company or assist any person or entity in doing so or attempting to
do
so.
b. Confidential
and Proprietary Information.
(1) The
Executive will not disclose or use, at any time either during or after the
term
of this Agreement, except at the request of the Company or an affiliate of
the
Company, any Confidential and Proprietary Information (as herein defined),
except to the extent disclosure is or may be required by a statute, by a court
of law, by any governmental agency having supervisory authority over the
business of the Company or by any administrative or legislative body (including
a committee thereof) with jurisdiction to order him to divulge, disclose or
make
accessible such information, provided, however, that the Executive shall give
the Company notice of any such request or demand for such information upon
his
receipt of same and the Executive shall reasonably cooperate with the Company
in
any application the Company may make seeking a protective order barring
disclosure by the Executive. The Executive acknowledges that the Confidential
and Proprietary Information constitutes a unique and valuable asset of the
Company and each affiliate of the Company, and that any disclosure or other
use
of the Confidential and Proprietary Information other than for the sole benefit
of the Company or the affiliates of the Company could cause irreparable harm
to
the Company or the affiliates of the Company, as the case may be. “Confidential
and Proprietary Information” shall mean all of the Company’s (or any
affiliate’s) proprietary information, technical data, trade secrets, and
know-how, including, without limitation, schematics, research, product plans,
customer lists, information and plans about costs, profits, markets and sales,
software, developments, development tools, inventions, discoveries, processes,
ideas, formulas, algorithms, technology, designs, drawings, business strategies
and financial data and information, whether or not marked as “Confidential” or
“Proprietary.” “Confidential or Proprietary Information” shall also mean any and
all information received by the Company (or any affiliate) from customers of
the
Company (or an affiliate) or other third parties subject to a duty to be kept
confidential.
(2) The
Executive hereby acknowledges and agrees that all personal property, including,
without limitation, Confidential and Proprietary Information, all books,
manuals, records, reports, notes, contracts, lists, blueprints, and other
documents, or materials, or copies thereof, and equipment furnished to or
prepared by the Executive in the course of or incident to his employment belong
to the Company. Immediately following the termination of this Agreement, the
Executive shall promptly return to the Company all such materials, and certify
to the Company in writing that he has not retained any written or other tangible
or electronic material containing any Confidential and Proprietary Information
or other information pertaining to the Company.
(3) The
Executive agrees that he will not, during his employment with the Company,
improperly use or disclose any proprietary information or trade secrets of
any
other company or other person or entity and that the Executive will not bring
onto the premises of the Company any unpublished document or proprietary
information that belongs to any such company, person or entity unless consented
to in writing by such other company, person or entity.
c. Remedies.
Executive agrees and acknowledges that the foregoing restrictions and their
duration as set forth in this Section 8 are under all of the circumstances
reasonable and necessary for the protection of the Company and its business.
In
the event that the Executive shall breach any of the provisions of Section
7 or
8, in addition to and without limiting or waiving any other remedies available
to the Company, at law or in equity, the Company shall be entitled to immediate
injunctive relief in any court, domestic or foreign, having the capacity to
grant such relief, to restrain any such breach or threatened breach and to
enforce the provision of this Agreement.
9. Notices.
For the
purposes of this Agreement, notices, demands, and all other communications
provided for in this Agreement shall be in writing and shall be deemed to have
been duly given (i) when delivered, if delivered personally, (ii) five business
days after mailing, if mailed by United States certified or registered mail,
return receipt requested, postage prepaid, or (iii) on the next business day,
if
sent by an overnight courier, in each case addressed as follows:
|
If
to the Company:
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If
to the Executive:
|
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Attn:
Xxxx Xxxxx
0000
Xxxx Xxxxxxxx
Xxxxxxxxx,
X.X., Xxxxxx X0X 0X0
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Xxxxx
Xxxxxxx
00
x Xxxxxx Xxxxx Xxxxxx
Xxxxxxxxx
Xxxxxx
00000
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10. Miscellaneous.
No
provision of this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing signed by the
Executive and such officer of the Company as may be specifically designated
by
the Board. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of New York without regard
to its conflicts of law principles. Except as otherwise specifically provided
herein, the rights of, and benefits payable to Executive, his estate or his
beneficiaries pursuant to this Agreement are in addition to any rights of,
or
benefits payable to the Executive, his estate or his beneficiaries under any
other employee benefit plan or compensation program of the Company.
11. Succession.
The
provisions of this Agreement shall be binding upon any successor entity to
the
Company. Any such successor of the Company will be deemed substituted for the
Company under the terms of this Agreement for all purposes. For this purpose,
“successor” means any person, firm, corporation, or other business entity which
at any time, whether by purchase, merger, or otherwise, directly or indirectly
acquires or controls all or substantially all of the assets or business of
the
Company. The Company agrees that it will cause any successor entity to the
Company unconditionally to assume, by written instrument delivered to the
Executive (or his beneficiary or estate), all of the obligations of the Company
hereunder. Failure of the Company to obtain such assumption shall be a breach
of
this Agreement and shall constitute Good Reason hereunder and shall entitle
the
Executive to compensation and other benefits described in Section 6
above.
12. Invalidity
or Unenforceability.
If any
term or provision of this Agreement is held to be invalid or unenforceable,
for
any reason, such invalidity or unenforceability shall not affect any other
term
or provision hereof, and this Agreement shall continue in full force and effect
as if such invalid or unenforceable term or provision (to the extent of the
invalidity or unenforceability) had not been contained herein.
13. Arbitration.
Except
as otherwise expressly provided herein, any controversy or claim arising out
of
or relating to this Agreement, or the breach hereof, or the inability of the
parties to reach agreements pursuant to Section 6(f) or Section 9(a), shall
be
settled by arbitration in New York, New York, before one arbitrator in
accordance with rules then in effect of the American Arbitration Association.
The non-prevailing party will pay the legal expenses of the prevailing
party.
14. Section
Headings.
The
section headings in this Agreement are for convenience only; they form no part
of this Agreement and shall not affect its interpretation.
15. Counterparts.
This Agreement may be signed by facsimile and in one or more counterparts,
each
of which shall be an original, but all of which together shall constitute one
instrument, and shall be binding and effective immediately upon the execution
by
all parties of one or more counterparts.
16. Construction
and Joint Preparation.
This
Agreement shall be construed to effectuate the mutual intent of the Parties.
The
Parties and their counsel have cooperated in the drafting and preparation of
this Agreement, and this Agreement therefore shall not be construed against
any
Party by virtue of its role as the drafter thereof. No drafts of this Agreement
shall be offered by any Party, nor shall any draft be admissible in any
proceeding, to explain or construe this Agreement.
17. Entire
Agreement.
This
Agreement sets forth the entire agreement and understanding of the parties
in
respect of the transactions contemplated hereby and supersedes all prior or
contemporaneous agreements, arrangements and understandings of the parties
relating to the subject matter hereof.
[remainder
of this page intentionally left blank; signature page to follow]
IN
WITNESS WHEREOF,
the
parties have executed this Agreement effective as of the date first
written.
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COMPANY:
By:
/s/
Xxxx Xxxxx
Name:
Xxxx Xxxxx
Title:
Chief Executive Officer
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EXECUTIVE:
By:
/s/
Xxxxx Xxxxxxx
Name:
Xxxxx Xxxxxxx
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