EXHIBIT 10.6
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (this "Agreement") is made effective as of
August 15, 2002, by and between Case Financial, Inc., a California corporation
(the "Company"), and Xxxx X. Xxxxxx ("Employee").
In consideration of the mutual promises herein contained and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Employee and the Company agree as follows:
1. TERM. Subject to the terms and conditions herein contained, the
Company hereby employs Employee, and Employee hereby accepts such employment,
for a period of twenty-four (24) months beginning as of the effective date of
this Agreement.
2. POSITION. During Employee's employment hereunder, Employee will hold
the position of Chief Information Officer and/or such other management
position(s) as the Board of Directors may determine in its sole discretion. As
Chief Information Officer, Employee's duties shall include, but shall not be
limited to, those set forth on EXHIBIT A attached hereto, which may be amended
from time to time upon the mutual written agreement of the Company and Employee.
3. COMPENSATION.
(a) BASE COMPENSATION. As consideration for all services which
Employee may render to the Company or its subsidiaries in any capacity during
the term hereof, Employee will receive, and the Company hereby agrees to pay
Employee, base compensation ("Base Compensation") at the annual rate of Ninety
Thousand ($90,000) per year commencing on the date of this Agreement. Upon each
yearly anniversary of the date of this Agreement, Employee's Base Compensation
automatically shall be increased by the "Cost of Living" based on the accepted
"Cost of Living Index
(b) SIGNING BONUS. Upon the execution of this Agreement,
Employee shall be entitled to receive from the Company One Hundred Thousand
(100,000) shares of the Company's common stock, $.0001 par value per share
("Common Stock").
(c) ANNUAL BONUS. Employee shall also be entitled to receive
from the Company with respect to each fiscal year during the term of this
Agreement, such bonus ("Bonus") as the Company's Board of Directors or the
Compensation Committee of such Board shall determine; provided, however, that
nothing herein shall be deemed to require that a bonus be paid with respect to
any given fiscal year and that, in determining the level of bonus, if any,
payable for a given fiscal year, the Board of Compensation Committee may
consider the Automatic Annual Increase as part of any Bonus. The bonus shall not
exceed Thirty Thousand Dollars ($30,000) per each fiscal year.
Employee's Base Compensation, as increased by any Automatic Annual
Increase, Commission and Bonus are hereinafter collectively referred to as
"Compensation."
4. BENEFITS; EXPENSES; AND VACATION. In addition to the Compensation,
Employee shall be entitled to receive the following additional benefits during
the term of this Agreement:
(a) Company-paid health, life, disability and/or dental
insurance (all on such terms and with such insurers as the Company shall offer
to its other executive officers); and
(b) Paid vacation of 3 weeks in the first year of the Contract
and 4 weeks in the second year of the Contract.
(c) all such other fringe benefits and perquisites, if any, as
the Company shall from time to time make generally available to employees of the
Company.
5. FULL-TIME EMPLOYMENT. During the term hereof, Employee will devote
his full time and best efforts to the business of the Company.
6. NON-COMPETITION.
(a) Throughout the term of this Agreement and for twelve (12)
months following the termination of this Agreement, Employee agrees not to
compete with the business of the Company anywhere in the United States where the
Company currently or expects to conduct business. The phrase "compete with the
business of" shall be deemed to include engaging or being interested, directly
or indirectly, as an owner, employee, general partner, consultant, through stock
ownership, investment of capital, or rendering of services, either alone or in
association with others, in the ownership, operation, management or supervision
of any type of business or enterprise competitive with the Company. The
foregoing shall not prevent Employee from owning up to 5% of the outstanding
securities of a publicly held corporation which may compete with the business of
the Company.
(b) CONFIDENTIALITY.
(1) CONFIDENTIAL INFORMATION. The term "Confidential
Information" as used in this Agreement shall include all ideas, materials,
information, data, records, methods or plans developed, used or employed by the
Company, its investors or its customers and not generally known to the public.
"Confidential Information" also includes, but is not limited to, all information
regarding the Company's, its investors' or its customers' financial affairs,
accounts, customer lists, marketing plans, business or acquisition strategies,
pricing, products, properties, processes, rate structure, services, employee
names, addresses, employment histories, compensation; provided, however, that
Confidential Information shall not include information which properly and
lawfully has become generally known to the public other than as a result of the
act or omission of Employee.
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(2) IMPORTANCE OF CONFIDENTIAL INFORMATION. Employee
acknowledges and agrees that the Company's Confidential Information is a
valuable, special and unique asset of the Company which is extremely important
in a highly competitive business such as the financial services industry.
Employee acknowledges that the disclosure of any Confidential Information may
cause substantial injury and loss to the Company. Employee acknowledges that the
Company retains a proprietary interest in its Confidential Information that
persists beyond the termination of Employee's employment by the Company.
Employee further acknowledges that the preservation and protection of the
Confidential Information is an essential part of Employee's employment by and
business relationship with the Company and that Employee has a duty of fidelity
and trust to the Company in handling the Confidential Information.
(3) NON-DISCLOSURE OR USE. Employee shall not, during
the term of this Agreement and for a two year period thereafter, without the
prior written consent of the Company in each instance or as otherwise may be
required by law or legal process, disclose to anyone any Confidential
Information of the Company, or utilize such Confidential information for
Employee's own benefit, or for the benefit of any third party, until such time,
if ever, as such confidential information becomes general public knowledge
(unless caused by any act of Employee in violation of this Agreement), and all
memoranda, records or other documents compiled by Employee or made available
during the term of this Agreement pertaining to the business of the Company or
any Confidential Information shall be the property of the Company and shall be
delivered to the Company on the termination of Employee's employment or at any
other time, immediately upon request by the Company.
(c) NON-SOLICITATION. Employee agrees and acknowledges that
Employee's services hereunder are of a special, unique, extraordinary character,
that Employee's employment with the Company places Employee in a position of
confidence and trust and that Employee's services hereunder necessarily will
require the disclosure to Employee of Confidential Information of the Company.
Employee consequently agrees that it is reasonable and necessary for the
protection of the goodwill and business of the Company that Employee make the
covenants contained herein and that Company is relying upon and is induced by
the agreements made by Employee in this paragraph. Accordingly, Employee agrees
that during the term of this Agreement and for a twelve (12) month period
thereafter, Employee shall not, except on behalf of the Company, directly or
indirectly, and regardless of the reason for the cessation of Employee's
employment (i) attempt in any manner to persuade any third party to cease to do
business, or to reduce the amount of business which any such party customarily
has done or contemplates doing, with the Company, whether or not the
relationship between the Company and such third party was originally established
in whole or in part through Employee's efforts; or (ii) on Employee's own behalf
or otherwise, hire, solicit, seek to hire, or offer employment to any person who
is, during any such time period, an employee of or independent contractor with
the Company, or in any other manner attempt, directly or indirectly, to
influence, induce or encourage any such person to leave the employ of, or
terminate or diminish such person's business relationship with, the Company. As
used in this paragraph, the verb 'employ' shall include its variations, for
example, retain or engage; and the "Company" shall include Case Financial, Inc.
and each of its direct or indirect subsidiaries.
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The covenants of Employee set forth in this Section 6 are made in consideration
of the payments made to Employee pursuant to this Agreement, the receipt,
adequacy and sufficiency of which are acknowledged by Employee, and such
covenants have been made by Employee to induce the Company to enter into this
Agreement.
7. STOCK OPTIONS. In consideration of his services hereunder, Employee
shall be entitled to receive from the Company and the Company shall grant to
Employee concurrently with the execution hereof, an option to purchase up to
150,000 shares of Common Stock at the price of the stock on the close of
business on May 24, 2002 which was the day the transaction with Asia Web
Holdings Inc. closed. The options shall be distributed equally over a period of
three (3) years (i.e. 4,166 options per month over the 3 years) and shall vest
as of the date of this Contract.
8. OWNERSHIP OF COPYRIGHT; WORK PRODUCT. Employee, in his time and
scope of employment under this Agreement, may create or draft documents
including, but not limited to forms, letters, correspondence, charts, graphs,
spreadsheets, illustrated pictures, digital pictures, photographic pictures,
video presentations and musical compositions related to the business of the
Company. Employee hereby acknowledges that any such documents produced in the
course and scope of the employment relationship are the work product of the
Company and all copyrights, patents, trademarks and all other rights to such
works are owned by the Company. Upon the conclusion of Employee's employment
with the Company, such documents will remain the intellectual property of the
Company and are to remain at the Company's headquarters. Employee agrees to
execute any and all documents reasonably requested by the Company to effect the
provisions of this Section 8.
9. DRUG TESTING. The Company may, at its discretion, require Employee
to submit to drug testing at an appropriate medical facility if Company
management has a reasonable suspicion of Employee's continued use of narcotics
and/or alcohol (collectively "drug use"). If the drug test indicates drug use,
Employee shall be entitled to a second test within seven (7) days of the results
and if the second test indicates use in addition to the first test, or Employee
refuses to submit to drug tests, the Company may terminate Employee immediately.
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10. TERMINATION.
(a) TERMINATION OF AGREEMENT. Notwithstanding any other
provision of this Agreement, either party shall have the right to terminate this
Agreement at any time, for any reason, upon 30 days written notice to the other
party.
(b) EFFECT OF TERMINATION.
(i) TERMINATION WITHOUT CAUSE. In the event the Company
terminates Employee during the term of this Agreement without "cause" (as
defined below), the Company shall (i) continue to pay Employee his Base
Compensation then in effect for the remainder of the term of the Agreement, and
(ii) continue to provide Employee with the stockoptions as outlined in Section 7
of this Agreement. As a condition to the receipt of the Base Compensation and
benefits as set forth in Section 4, Employee shall make diligent efforts to
mitigate his damages by seeking other employment and shall advise the Company of
such efforts made. To the extent Employee receives compensation or benefits from
such other employment or other collateral source, the payment of the Base
Compensation and the benefits pursuant to Section 4 shall be correspondingly
reduced.
(ii) TERMINATION FOR CAUSE. In the event of termination
by the Company for cause, or in the event Employee voluntarily terminates this
Agreement, no further payments of any Compensation shall be made to Employee,
except for payment of the Base Compensation then in effect during the 30-day
notice period.
(iii) CAUSE. For the purposes hereof, "cause" shall be
limited to the following: (i) conviction of a felony; (ii) commission of any
intentional and material act involving fraud or misappropriation of funds,
properties or assets of the Company; (iii) chronic alcoholism, drug addiction or
substance abuse; (iv) failing, or refusing to submit to, a drug test in
accordance with Section 9 of this Agreement, (v) gross negligence in the
performance of Employee's duties hereunder, (vi) gross negligence in the
performance of Employee's duties hereunder which the Board of Directors of the
Company determines to have a material adverse effect on the Company; or (vii)
any material violation of any written policies of the Company which, to the
extent curable, are not cured within thirty (30) days of Employee's receipt of
notice thereof.
(c) SURRENDER OF BOOKS AND RECORDS. Upon the termination of
this Agreement, for any reason, Employee shall immediately surrender to the
Company all lists, books, records and other documents incident to the Company's
business and all other property belonging to the Company, it being distinctly
understood that all such lists, books, records and other documents are the
property of the Company.
11. SURVIVAL. Upon the expiration or other termination of this
Agreement, all obligations of the parties shall forthwith terminate, except for
any obligation to pay any fixed sum of money or to grant any Options pursuant to
Section 7 which may have accrued and be due and payable hereunder at the time of
such expiration or other termination and except that the provisions of Section 6
shall continue in full force and effect in accordance with its terms, such
Section containing independent agreements and obligations.
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12. INDEMNITY. The Company agrees to defend, indemnify and hold
harmless Employee from any and all claims, actions, lawsuits or other choses in
action brought against Employee by any person/third party in connection to or
related in any manner whatsoever to Employee's duties, obligations and/or
responsibilities arising out Employee's employment with Company.
13. INCAPACITY. In the event Employee becomes "incapacitated" (defined
as so seriously injured that Employee is physically and/or mentally unable to
complete his/her duties under the term of the Contract) Company shall agree to
pay at least three (3) months of Employee's compensation and benefits as under
the term and conditions of this Contract from the date Employee is determined to
be "incapacitated." Company retains the right at their expense to have their own
physician(s) or other health care provider(s) examine Employee to determine if
Employee is "incapacitated"
14. EQUITABLE REMEDIES. The agreements of the parties contained in
Section 6 and 8 are of a special, unique and extraordinary character; the
obligations contained therein shall therefore be enforceable both at law and in
equity, by injunction and otherwise; and the rights and remedies of the Company
and the Employee hereunder with respect thereto shall be cumulative and not
alternative and shall not be exhausted by any one or more uses thereof.
15. ENTIRE AGREEMENT; WAIVERS AND AMENDMENTS. This Agreement sets forth
the entire agreement between the parties with respect to the terms and
conditions of Employee's employment and any and all matters related thereto, and
any and all prior agreements with respect to any thereof, whether oral or
written, are superseded hereby. Neither this Agreement nor any term or condition
hereof, including, without limitation, the terms and conditions of this
paragraph, may be waived or modified in whole or in part as against the Company
or Employee, as the case may be, except by written instrument signed by an
authorized officer of the Company or by Employee, as the case may be, expressly
stating that it is intended to operate as a waiver or modification of this
Agreement, and any such written waiver by either party of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach hereof.
16. NOTICE. Any notice hereunder shall be in writing and shall be
deemed given or delivered two (2) days after it has been mailed by registered or
certified mail, postage prepaid, or one (1) day after being sent by a recognized
national courier service, in each case addressed as follows:
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If to Company: Case Financial, Inc.
00000 Xxxxxxx Xxxx., #000
Xxxxxxx Xxxx, XX 00000
If to Employee: Xxxx Xxxxxx
00000-000 Xxxxxxx Xxxx
Xxxxxx Xxxxxxx, XX 00000
except that either party may from time to time by written notice to the other,
designate another address which shall thereupon become his effective address for
the purposes of this Section.
17. SEVERABILITY. If any term or provision of this Agreement or the
application thereof to any person, property or circumstance shall to any extent
be invalid or unenforceable, the remainder of this Agreement or the application
of such term or provision to persons, property or circumstances other than those
as to which it is invalid or unenforceable, shall not be affected thereby, and
each term and provision of this Agreement shall be valid and enforced to the
fullest extent permitted by law.
18. NO ASSIGNMENT. This Agreement is personal in nature and the
obligations hereunder may not be assigned by the Company or by Employee without
the prior written consent of the other party hereto; provided, however, that the
provisions hereof shall inure to the benefit of, and be binding upon each
successor of the Company, whether by merger, consolidation, transfer of all or
substantially all of its assets, or otherwise.
19. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of California.
20. ARBITRATION; VENUE.
(a) Subject to the provisions of Section 13 hereof, any
dispute, controversy or claim arising out of, relating to, or in connection
with, this Agreement or the agreements or transactions contemplated hereby shall
be finally settled by arbitration conducted in accordance with the provisions of
this Section 18. The arbitrator shall be a retired judge or practicing attorney
and the arbitration shall be conducted and the arbitrator chosen in accordance
with the rules of the American Arbitration Association (the "AAA") in effect at
the time of the arbitration, except as they may be modified herein or by mutual
agreement of the parties hereto (the "Parties"). If the Parties are unable to
agree on the location of the arbitration within five (5) business days after the
date of delivery of the request of arbitration, the Parties agree the
arbitration will be conducted in Los Angeles County, California. Each Party
hereby irrevocably submits to the jurisdiction of the arbitrator in Los Angeles,
California and waives any defense in an arbitration based upon any claim that
such Party is not subject personally to the jurisdiction of such arbitrator,
that such arbitration is brought in an inconvenient forum or that such venue is
improper.
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(b) The arbitrator's award shall be in writing and shall be
final and binding on the Parties. The award may include an award of costs,
including reasonable attorneys' fees and disbursements. Judgment upon the award
may be entered by any court having jurisdiction thereof or having jurisdiction
over the Parties or their assets.
(c) Any dispute, controversy or claim arising out of, relating
to, or in connection with, this Agreement or the agreements or transactions
contemplated hereby, as well as any arbitration proceeding under this Section
20, shall be deemed to be "Confidential Information," subject to the provisions
of Section 6 of this Agreement.
21. ATTORNEYS' FEES. In the event of suit, arbitration or other
proceeding between the parties hereto with respect to this Agreement, the
prevailing party shall, in addition to such other relief as may be awarded, be
entitled to reasonable attorneys' fees, expenses and costs of investigation, all
as actually incurred.
IN WITNESS WHEREOF, the undersigned have executed this Agreement
effective as of the date first set forth above.
CASE FINANCIAL, INC.
By: /s/ Xxxx Xxxxx
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XXXX XXXXX
Title: Chief Executive Officer
Dated: ____________________
/s/ Xxxx X. Xxxxxx
--------------------------------
XXXX X. XXXXXX
Dated: _____________________
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EXHIBIT A
DESCRIPTION OF DUTIES
As Chief Information Officer, the Employee's duties shall include but
are not limited to the following: Direct and coordinate the activities of
Information Systems in the planning for an effective computing environment for
CFI's business and administrative support. Develop improved service routines,
procedures and methods to ensure efficient computer utilization and expedient
completion of schedule requirements. Maintain interface with CFI managers in the
selection and set-up of major computing applications appropriate to their
activities. To specifically determine the requirements; oversee the development
of the database, reports and user interfaces; and implement a new database
application to service the company's current and foreseeable needs for it's
primary data collection, underwriting evaluation, and case tracking (assuming
that the company approves funding for this project). Also, to choose and
implement a new accounting software package.
Special projects that may be assigned from time to time; e.g. 1]
finding appropriate space and relocating the company to new offices, 2]
Reconfiguration of the company's Network Servers.
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EXHIBIT B
OPTION AGREEMENT
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