EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (this "Agreement"),
effective as of the 1ST day of
October, 2008, is by and among Wilshire Inter-Group, Inc., a
Nevada corporation (the “Company”),
with offices at 0000 Xxxx Xxxxxxx Xxxx Xxxxx 0 Xxx Xxxxx, Xxxxxx 00000; and Xxxxxx X. Xxxxx, an
individual and a resident of the State of Nevada, with an address at 00000
Xxxxxxx Xxxx Xxxxx, Xxx Xxxxx, Xxxxxx 00000 (the "Executive").
WITNESSETH:
WHEREAS, in recognition of the
valuable nature of Executive's Management and Entrepreneurial capabilities to
the business of Company, Company desires to enter into this Agreement with
Executive to be effective as of the date Company is approved for registration
with the SEC; written (the "Effective
Date"); and
WHEREAS, Executive desires to
enter into this Agreement with Company and to be employed by Company in the
capacity, for the period, and on the terms and conditions set forth
herein;
NOW THEREFORE, in
consideration of the mutual covenants, agreements and conditions contained
herein, the parties hereto intending to be legally bound do hereby covenant and
agree as follows:
1. Employment.
(a) Company
hereby agrees to employ Executive, and Executive hereby agrees to serve the
Company, as President, Secretary, Treasurer and Director of the Company, and,
subject to the direction of the Board of Directors, to perform such duties,
functions and responsibilities commensurate with and appropriate to such
positions, and as the same may be from time to time set forth in the By-laws of
Company or otherwise delegated to Executive the Board of Directors of Company or
their designates.
(b) Executive
shall receive from Company the necessary power and authority to carry out and
discharge all such duties, functions and responsibilities.
(c) Executive
shall be an employee of the Company and shall devote his commercially reasonable
efforts to the performance, discharge and fulfillment of all such duties,
functions and responsibilities; provided, however, that Executive may consult on
behalf of, or render services to, entities that do not compete with the current
operations of the Company during the term of this Agreement.
(d) Executive
will primarily perform his services in the State of Nevada, or at such other
location as may be mutually agreed upon by the Board of Directors of Company and
Executive.
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2. Term of
Employment.
(a) Subject
to the provisions for termination as hereinafter provided, the term of
employment under this Agreement shall be effective as of the Effective Date and
shall continue through August, ____, 2012; provided, however, that
beginning on August ____, 2010 and on August ____, each year thereafter (each
such August ____, being referred to as a "Renewal
Date"), the term of this Agreement shall automatically be extended for an
additional one year so that on each Renewal Date the then remaining, unexpired
term of this Agreement shall be three (3) years, unless either party gives the
other written notice of non-renewal at least ninety (90) days prior to any such
Renewal Date.
(b) This
Agreement shall terminate prior to the expiration of the initial term or any
renewal term of this Agreement upon the earliest to occur of the
following:
(iii) as
permitted by Section 7
hereof by Executive upon a "Change of Control of the Company" (as hereinafter
defined pursuant to Section 7;
or
(iv) as
permitted by Section 7
hereof, by Company for "Cause" (as hereinafter defined) pursuant to Section 7.
Sections 6,
7, 8, and 11 shall survive the termination of this
Agreement.
3. Compensation.
(a) In
consideration for all of the services to be rendered by Executive to the
Company, the Company shall pay Executive an initial annual base salary (“Annual
Base Salary”) of an amount equal to One Hundred and Fifty Thousand Dollars
($150,000.00). The Annual Base Salary shall be subject to yearly
increases August, ____, of each year, as approved by the Board of Directors or
any authorized committee thereof (the "Compensation
Committee"); provided, however that, such increase shall not be less than
the increase in the U.S. government's Consumer Price Index, all markets, for the
prior twelve (12) months (such annual base salary, as it may be increased from
time to time hereafter, being herein referred to as the "Annual Base
Salary").
(b) The
Annual Base Salary shall be paid to Executive in consistent periodic
installments throughout the year in accordance with Company's normal and
customary pay policy for executive officers of Company.
(c) In
addition to the Annual Base Salary to be paid pursuant to subsection
3(a) of this Agreement, during the term of this Agreement or any renewal
or extension, the Company shall pay to the Executive as incentive compensation
annual bonuses in accordance with the incentive bonus plan(s) adopted from time
to time by the Board of Directors or the Compensation Committee of the Board of
Directors, as the case may be. Such plan, among other things, shall
establish a bonus based on performance criteria mutually agreeable to the
Executive and the Board of Directors or the Compensation Committee, such as
annual gross revenues, operating profitability and capital
formation.
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(d) The
amount of the Annual Base Salary and any other amounts payable pursuant to this
Agreement are gross amounts due by Company to Executive hereunder, and Company
shall have the right to deduct there from all taxes and other amounts which may
be required to be deducted or withheld by law (including, but not limited to,
federal income tax withholding and social security payments), whether such law
is now in effect or becomes effective after the date of this
Agreement.
(e) In
addition to the foregoing, in the event that Company grants equity options or
similar incentives to its officers and employees from time to time hereafter,
Executive shall be allowed to participate in any such future equity options or
similar incentives on such terms as are approved by the Board of Directors of
Company or the Compensation Committee and are offered to other executive
officers of Company.
4. Executive Benefits and
Business Expenses.
(a) During
the term hereof, Executive shall be entitled to receive Company provided
employee benefits including, but not limited to, medical, dental, health, life,
accident and disability insurance programs. Additionally, Executive
shall be entitled to participate in such employee benefit plans and programs,
including, but not limited to, savings for retirement plans, bonus, stock option
plans, and any other incentive compensation plans.
(b) The
Company shall cover all prior approved costs of domestic and international
business travel.
(c) Executive
shall be reimbursed for any necessary business expenses reasonably incurred by
Executive in carrying out Executive's duties, functions and responsibilities
hereunder, including, without limitation, mobile telecommunications, taxi fares,
parking and toll charges, and the like. Executive will also have an
allowance for an auto lease approved by the Board of Director in
advance.
5. Vacation and Sick Leave
Time.
Executive
shall be entitled to annual sick leave time pursuant to the plan or policy
adopted by the Company, or as hereafter may be amended, available for other
executive officers of Company. Commencing on the Effective Date, the Executive
shall be entitled to annual vacation time equal to no less than four (6)
weeks paid vacation every year throughout the term of this
Agreement.
6. Termination. In
the event of (a) termination by the Company or any successor of the
Executive's employment hereunder without Cause, or (b) Executive terminates
his employment for Good Reason, then Executive shall be entitled to
receive: (i) an amount (the "Termination
Amount") equal to two (6) months of the then Annual Base Salary plus 50%
of the maximum bonus provided in Subsection 3(c);
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For the
purpose of this Agreement, "Good
Reason" is defined as any breach of this Agreement by the Company; or any
act or set of facts or circumstances which would, under Nevada or Nevada case
law or statute, constitute a constructive termination of the
Executive.
7. Change of
Control. In the event of a Change of Control of the Company,
at the option of the Executive, (a) the term of employment shall terminate,
(b) Executive's outstanding shares shall vest immediately and Executive
shall be granted a severance payment equal to 80% of remaining years of this
agreement.
For this
purpose, "Change of Control
of the Company" is defined as:
(a) Any
"person" (as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended) becomes the "beneficial owner" (as defined in
Rule 13d-3 under said Act), directly or indirectly, of securities of the Company
representing 51% or more of the total voting power represented by the Company's
then outstanding voting securities; or
(b) A
change in the composition of the Board of Directors of the Company occurring
within a two-year period, as a result of which fewer than a majority of the
Board of Directors are Incumbent Board of Directors. "Incumbent Board
of Directors" means Board of Directors who either (i) are Board of
Directors of the Company as of the date hereof, or (ii) are elected, or
nominated for election, to the Board of Directors of the Company with the
affirmative votes of at least 65% of the Incumbent Board of Directors at the
time of such election or termination (but shall not include an individual whose
election or nomination is in connection with an actual or threatened contest
relating to the election of Board of Directors to the Company); or
(c) The
consummation of a merger or consolidation of the Company with any other entity
other than a merger or consolidation which would result in the voting securities
of the Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting securities of
the surviving entity) at least thirty-five percent (35%) of the total voting
power represented by the voting securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation;
or
(d) The
consummation of the sale or disposition by the Company of all or substantially
all of the Company's assets.
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10. Breach by
Executive.
(a) In
the event that Executive willfully and materially breaches this Agreement,
Company may terminate this Agreement, at the option of Company,
(i) effective immediately upon discovery of said Breach after
Company gives written notice of such termination to Executive and effective upon
payment of thirty (30) days' pay.
(b) A
material breach of this Agreement by Executive, in either case that is
materially detrimental to Company as determined in good faith by the Board of
Directors of the Company and supported by a formal resolution duly voted upon
and adopted by the Board of Directors, shall be deemed to have occurred upon the
happening of any of the following events (for "Cause"),
and the written notice of such breach from the Company is received by Executive,
to-wit:
(i) Executive's
wanton or willful misconduct in the performance or discharge of any of
Executive's duties, functions and responsibilities hereunder; or
(ii) Executive's
conviction of any felony offense during the term of this Agreement;
or
(iii) Executive's
breach of any of Executive's material obligations hereunder, including, without
limitation, Executive's obligations under Sections
11 and
12 hereof.
In the
event Company elects to terminate Executive pursuant to this Section
10, Company shall give written notice to Executive specifically stating
each fact and reason, which is the basis for such termination. Following such
termination, Company shall have no further obligation to Executive under this
Agreement except for accrued and unpaid cash and non-cash compensation payments
then due and owing to Executive.
11. Confidentiality, Proprietary
Information and Trade Secrets.
(a) During
the term of this Agreement and for a period of one (1) year after the
termination of this Agreement, Executive shall not disclose, communicate or
divulge to any person, firm, association or company, other than the Company, any
material referred to in Subsections 11(f),
(g) and (h) hereof, or any proprietary information regarding the business
methods, business, policies, procedures, techniques, research or development
projects or results, trade secrets or other knowledge or processes of, or
developed by, Company or any names and addresses of customers or clients or any
data on or relating to past, present or prospective customers or clients or any
other confidential information relating to or dealing with the business
operations or activities of Company, made known to Executive or learned or
acquired by Executive while employed by Company.
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(b) During
the term of this Agreement and for a period of one (1) year after the
termination of this Agreement, Executive shall not, directly or indirectly, in
any geographic area served by Company or its affiliates induce or attempt to
influence any employee of Company to terminate his or her employment with
Company or to hire any such employee of Company, without the Company’s prior
written consent.
(c) Executive
acknowledges and agrees that the restrictions contained in Subsections 11(a)
and (b) (the "Restrictions"),
in view of the nature of the business in which Company is engaged, are
reasonable and necessary in order to protect the legitimate business interests
of Company, and that any violation thereof would result in irreparable harm to
Company, and Executive therefore further acknowledges and agrees that, in the
event Executive violates, or threatens to violate, any of such Restrictions,
Company shall be entitled to obtain from any court of competent jurisdiction,
without the posting of any bond or other security, preliminary and permanent
injunctive or equitable relief as well as damages and an equitable accounting of
all earnings, profits and other benefits arising from such violation, which
rights shall be cumulative and in addition to any other rights or remedies at
law or in equity to which Company may be entitled.
(d) If
any Restriction, or any part thereof, is determined in any judicial or
administrative proceeding to be invalid or unenforceable, the remainder of the
Restrictions shall not thereby be affected and shall be given full effect,
without regard to the invalid provisions.
(e) If
Executive violates any of the Restrictions, the restrictive period shall not run
in favor of Executive from the time of the commencement of any such violation
until such time as such violation shall be cured by Executive to the
satisfaction of Company.
(f) It
is recognized that Executive will have access to certain confidential
information of Company and its affiliates, and that such information constitutes
valuable, special and unique property of Company and its
affiliates. Executive shall not at any time during the term of this
Agreement and for a period of two years after the termination of this Agreement
disclose any such confidential information to any party for any reason or
purpose except as may be made in the normal cause of business of Company and for
its benefit.
(g) For
purposes of this Agreement, Confidential Information shall include the Company's
trade secrets and proprietary information, techniques, sketches, drawings,
know-how, processes, apparatus, equipment, algorithms, software programs,
software source documents and formulae related to the current, future and
proposed products and services of the Company, and/or the Company's parents,
subsidiaries, customers and/or vendors, whether delivered in written (or other
tangible) form or verbally, and includes, without limitation, information
concerning research, design details and specifications, financial data,
procurement requirements, customer lists, business forecasts and purchasing,
sales, merchandising, development and marketing plans, but shall exclude (i)
confidential information that was in the public domain at the time it was
communicated to the Executive; (ii) confidential information that enters
the public domain subsequent to the time it was communicated to Executive
through no fault of the Executive; or (iii) confidential information that
was in Executive's possession free of any obligation of confidence at the time
it was communicated to Executive.
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12.
Representations and
Warranties of Executive.
Except
for restrictions heretofore disclosed in writing by Executive to Company,
Executive represents and warrants toCompany that (a) there are no
restrictions, agreements or understandings whatsoever to which Executive is a
party which would prevent or make unlawful the execution or performance of this
Agreement or his employment hereunder; (b) his execution of this Agreement
and his employment hereunder shall not constitute a breach of any contract,
agreement or understanding to which he is a party or by which he may be bound;
and (c) he is free and able to execute and perform this Agreement in all
respects.
13.
Successors.
(a) This
Agreement shall inure to the benefit of and be binding upon Company and
Executive. This Agreement and the benefits and obligations of Company
hereunder may be assigned by Company to any person acquiring all or
substantially all of the assets or all of the issued and outstanding equity
securities of the Company; provided, however, that the Company shall remain
jointly and severally liable to Executive with such assignee for the fulfillment
of Company's obligations under this Agreement, or to any corporation with which
Company may be merged or consolidated.
(b) This
Agreement shall inure to the benefit of and be binding upon Executive and
Executive's executors, administrators, trustees, heirs and legal
representatives. Because Executive's duties, functions,
responsibilities, and services hereunder are special, personal and unique in
nature, Executive shall not transfer, sell or assign, by operation of law or
otherwise, Executive's obligations under this Agreement.
14.
Waivers. Neither
the failure nor any delay on the part of either party hereto to exercise any
right, remedy, power or privilege (collectively, "Right")
under this Agreement shall operate as a waiver, abandonment or release thereof;
nor shall any single or partial exercise of any Right preclude any other or
further exercise of the same or of any other Right, nor shall any waiver of any
Right with respect to any occurrence be construed as a waiver of such Right with
respect to any other occurrence.
11.
Severability. If
any provision of this Agreement shall be held to be invalid or unenforceable,
such invalidity or unenforceability shall not affect or impair the validity or
enforceability of the remaining provisions of this Agreement, which provisions
shall remain in full force and effect and the parties hereto shall continue to
be bound thereby.
16.
Entire
Agreement. This Agreement contains the entire agreement
between the parties relating to the subject matter hereof and supersedes all
previous agreements and understandings between the parties, whether written or
oral, with respect to the subject matter hereof. This Agreement shall
not be modified, altered or amended except by a writing executed by both
parties.
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17.
Notices. Any
notice or other communication provided for in this Agreement or contemplated
hereby shall be sufficiently given if given in writing and delivered personally
or by certified mail, return receipt requested, and addressed, in the case of
the Company, to the Company at:
Wilshire
Inter-Group, Inc.
0000 Xxxx
Xxxxxxx Xxxx
Xxxxx
0
Xxx
Xxxxx, Xxxxxx 00000
Attention: Chairman
of the Board
and in
the case of Executive, to the address set forth in the introductory
paragraph. Notice shall be effective when so delivered
personally. Either party may designate a different address by giving
notice of change of address in the manner provided above.
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18.
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Construction of
Agreement. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the State of
Nevada.
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IN WITNESS WHEREOF, the
parties hereto have executed this Agreement on and as of the day and year above
first written,
"Company"
Wilshire
Inter-Group, Inc.
a Nevada
corporation
By:
Printed
Name:
Title:
Director
"Executive"
____________________________________
Xxxxxx X. Xxxxx, an individual
and resident of the State of Nevada
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