EXHIBIT 10.4
EMPLOYMENT AGREEMENT
This Employment Agreement is made and entered into as of this 16th day of
September, 1998, by and between Cypress Financial Services, Inc., a Nevada
corporation (the "Company"), and Xxxxxx Xxxxxxx, an individual ("Executive").
RECITALS
A The Company desires to engage the services of Executive for the
Company.
B. Executive is willing and desires to be employed by the Company, and the
Company desires to employ Executive, upon the terms, covenants and conditions
hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual terms, covenants and
conditions hereinafter set forth, the parties hereto do hereby agree as
follows:
A. Employment. The Company hereby employs Executive as its chief executive
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officer, subject to the supervision and direction of the Company's Board of
Directors. Each year during the Term hereof, the Company shall use its best
efforts to cause Executive to be elected to serve on the Company's Board of
Directors.
B. Term. The term of this Agreement shall be for the period commencing on
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the date set forth above and shall continue through August 31, 2001, unless
terminated earlier pursuant to Section F below; provided, however, that
Executive's obligations in Sections D and E below shall continue in effect after
such termination. This three-year period is hereinafter referred to as the
"Term".
C. Compensation; Reimbursement.
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1. Base Salary. For all Services rendered by Executive under this
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Agreement, the Company shall pay Executive a base salary of one hundred eighty
thousand dollars ($180,000) per annum, payable twice monthly in equal
installments (the "Base Salary"). Executive's base salary may be increased up to
twenty percent (20%) each year if Executive meets certain performance criteria,
as mutually agreed to by Executive and the Company and accepted by the
Compensation Committee of the Board of Directors.
2. Management Bonus. As additional compensation, Executive shall be
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eligible to participate in the management bonus pool to be established by the
Board of Directors and administered by the Compensation Committee. The bonus
pool will consist of an amount equal to a percentage of the Company's net income
before income taxes, excluding extraordinary gains and any residual income from
securitizations. The bonus percentage will start once the Company has achieved a
minimum net income figure and will increase pursuant to a graduated schedule up
1
to a ceiling of ten percent (10%). Participants in the management bonus pool may
earn an annual bonus of an amount up to their base salary. During the first year
of this Agreement, Executive shall be entitled to quarterly advances of $22,500
against his management bonus, which will be offset against his management bonus
when earned. In the event that Executive's advances during such year exceed his
actual earned management bonus, Executive shall be obligated to repay to the
Company such shortfall. Any such shortfall shall not be compensation for
accounting or personal income tax purposes.
3. Stock Options. The Company shall, pursuant to the Company's stock
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option plan, grant to Executive an option to purchase 300,000 shares of the
Company's common stock at an exercise price of $1.3125 per share. The option
shall vest immediately upon grant as to 60,000 shares, with the balance of the
option vesting at the rate of 20,000 shares per quarter over the three year
period following the grant. Under the Company's stock option plan, no options
can be exercised during the first six (6) months following the date of the
grant.
4. Stock Purchase Loan. The Company agrees to loan to Executive up to
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one hundred thousand dollars ($100,000) to be used by Executive to purchase
shares of the Company's publicly traded common stock on the open market. The
loan shall be evidenced by a Recourse Secured Promissory Note, substantially in
the form of the attached Exhibit A. The loan shall be secured by a pledge of the
common stock so acquired pursuant to the terms of a Pledge Agreement and
Security Interest in the Proceeds of Sale, substantially in the form of the
attached Exhibit B.
5. Additional Benefits. In addition to the Base Salary and the
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Management Bonus, Executive shall be entitled to all other benefits of
employment provided to other officers and key employees of the Company,
including the Company's medical, dental and other insurance and health and
welfare plans.
6. Reimbursement. Executive shall be reimbursed for all reasonable
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"out-of-pocket" business expenses and disbursements for business travel and
business entertainment incurred in connection with the performance of his duties
under this Agreement (1) so long as such expenses constitute business deductions
(in whole or in part) from taxable income for the Company and are excludable
from taxable income to the Executive under the governing laws and regulations of
the Internal Revenue Code (provided, however, that Executive shall be entitled
to full reimbursement in any case where the Internal Revenue Service may, under
Section 274(n) of the Internal Revenue Code, disallow to the Company 20% of
meals and entertainment expenses); and (2) to the extent such expenses do not
exceed the amounts allocable for such expenses in budgets that are approved from
time to time by the Company. The reimbursement of Executive's business expenses
shall be upon monthly presentation to and approval by the Company of valid
receipts and other appropriate documentation for such expenses.
7. Relocation. The Company shall pay to Executive a one-time non-
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accountable relocation allowance in the amount of twenty thousand dollars
($20,000); provided, however, Executive shall be obligated to repay the entire
allowance in the event that, within ninety (90) days
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from the date hereof, Executive voluntarily terminates, or the Company for cause
terminates, his employment.
8. Withholdings. All compensation paid to Executive &hall be subject
------------
to customary withholding tax and other employment taxes as are required with
respect to compensation paid by a corporation to an employee.
D. Duties and Responsibilities.
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1. Full-time. Executive shall, during the Term of this Agreement,
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devote his full attention and expand his best efforts, energies, and skills, on
a full-time basis, to the business of the Company and any corporation controlled
by the Company. For purposes of this Agreement, the term the "Company" shall
mean the Company and all Subsidiaries. The Company agrees that the devotion of
reasonable amounts of time to business activities separate from and outside the
scope of the business of the Company will not violate the terms of this
Agreement, on the conditions that (i) such activities are not corporate
opportunities of the Company; and (ii) such activities do not interfere with the
performance of Executive's duties hereunder.
2. Duties set by Board. During the Term of this Agreement, Executive
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shall serve as the Chief Executive Officer of the Company or in such other
capacity as determined by the Board of Directors or an Executive Committee, if
any. In the performance of all of his responsibilities hereunder, Executive
shall be subject to all of the Company's policies, rules, and regulations
applicable to its executives of comparable status and shall report directly to,
and shall be subject to, the direction and control of the Board of Directors of
the Company and shall perform such duties as shall be assigned to him by the
Board of Directors or its Executive Committee, if any. In performing such
duties, Executive will be subject to and abide by, and will use his best efforts
to cause other employees of the Company to be subject to and abide by, all
policies and procedures developed by the Board of Directors or its Executive
Committee, if any.
3. Conflicting Activities.
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a. Executive shall not, during the term of this Agreement, be
engaged in any other business activity without the prior consent of the Board of
Directors of the Company; provided, however, that this restriction shall not be
construed as preventing Executive from investing his personal assets in passive
investments in business entities which are not in competition with the Company
or its affiliates.
b. Executive hereby agrees to promote and develop all business
opportunities that come to his attention relating to current or anticipated
future business of the Company, in a manner consistent with the best interests
of the Company and with his duties under this Agreement. Should Executive
discover a business opportunity that does not relate to the current or
anticipated future business of the Company, he shall first offer such
opportunity to the Company. Should the Board of Directors of the Company not
exercise its right to pursue this business opportunity within a reasonable
period of time, not to exceed sixty (60) days, then Executive may develop the
business opportunity for himself; provided, however, that such
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development may in no way conflict or interfere with the duties owed by
Executive to the Company under this Agreement. Further, Executive may develop
such business opportunities only on his own time, and may not use any service,
personnel, equipment, supplies, facility, or trade secrets of the Company in
their development. As used herein, the term "business opportunity" shall not
include business opportunities involving investment in publicly traded stocks,
bonds or other securities, or other investments of a personal nature.
4. Full Authority of Executive. To induce the Company to enter into
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this Agreement, Executive represents and warrants to the Company that (a)
Executive is not a party or subject to any employment agreement or arrangement
with any other person, firm, company, corporation or other business entity, (b)
Executive is subject to no restraint, limitation or restriction by virtue of any
agreement or arrangement, or by virtue of any law or rule of law or otherwise
which would impair the Executive's right or ability (i) to enter the employ of
the Company, or (ii) to perform fully his duties and obligations pursuant to
this Agreement, and (c) to the best of Executive's knowledge no material
litigation is pending or threatened against any business or business entity
owned or controlled or formerly owned or controlled by Executive.
E. Restrictive Covenants.
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1. Executive acknowledges that (i) he has a major responsibility for
the operation, administration, development and growth of the Company's business,
(ii) his work for the Company has brought him and will continue to bring him
into close contact with confidential information of the Company and its
customers, and (iii) the agreements and covenants contained in this Section E.1
are essential to protect the business interest of the Company and that the
Company will not enter into this Agreement but for such agreements and
covenants. Accordingly, the Executive covenants and agrees as follows:
a. Except as otherwise provided for in this Agreement, during the
Term of this Agreement and, if this Agreement is terminated under Section F.3
or F.5 during the Term, for two (2) years following such date of termination
(the "Termination Period"), the Executive shall not, directly or indirectly,
compete with respect to any services or products of the Company which are either
offered or are being developed by the Company as of the date of termination; or,
without limiting the generality of the foregoing, be or become. or agree to be
or become, interested in or associated with, in any capacity (whether as a
partner, shareholder, owner, officer, director, Executive, principal, agent,
creditor, trustee, consultant, co-venturer or otherwise) any individual,
corporation, firm, association, partnership, joint venture or other business
entity, which competes with respect to any services or products of the Company
which are either offered or are being developed by the Company as of the date of
termination; provided, however, that the Executive may own, solely as an
investment, not more than two percent (2%) of any class of securities of any
publicly held corporation in competition with the Company whose securities are
traded on any national securities exchange in the United States of America.
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b. During the term of this Agreement and, if applicable, during the
Termination Period, the Executive shall not, directly or indirectly, (i) induce
or attempt to influence any executive of the Company to leave its employ, or
(ii) induce or attempt to influence any person or business entity who was a
customer or supplier of the Company during any portion of said period to
transact business with a competitor of the Company in Company's business.
c. During the Term of this Agreement, the Termination Period, if
applicable, and thereafter, the Executive shall not disclose to anyone any
information about the affairs of the Company, including, without limitation,
trade secrets, trade "know-how", inventions, customer lists, business plans,
operational methods, pricing policies, marketing plans, sales plans, identity of
suppliers or customers, sales, profits or other financial information, which is
confidential to the Company or is not generally known in the relevant trade, nor
shall the Executive make use of any such information for his own benefit.
2. If the Executive breaches, or threatens to commit a breach of
Section E.1 (the Restrictive Covenants), the Company shall have the following
rights and remedies, each of which shall be enforceable, and each of which is in
addition to, and not in lieu of, any other rights and remedies available to the
Company at law or in equity.
a. The Executive shall account for and pay over to the Company all
compensation, profits, and other benefits, after taxes, which inure to
Executive's benefit which are derived or received by the Executive or any person
or business entity controlled by the Executive resulting from any action or
transactions constituting a breach of any of the Restrictive Covenants.
b. Notwithstanding the provisions of subsection a. above, the
Executive acknowledges and agrees that in the event of a violation or threatened
violation of any of the provisions of Section E.1, the Company shall have no
adequate remedy at law and shall therefore be entitled to enforce each such
provision by temporary or permanent injunctive or mandatory relief obtained in
any court of competent jurisdiction without the necessity of proving damages,
posting any bond or other security, and without prejudice to any other rights
and remedies which may be available at law or in equity.
3. If any of the Restrictive Covenants, or any part thereof, is held to be
invalid or unenforceable, the same shall not affect the remainder of the
covenant or covenants, which shall be given full effect, without regard to the
invalid or unenforceable portions. Without limiting the generality of the
foregoing, if any of the Restrictive Covenants, or any part thereof, is held to
be unenforceable because of the duration of such provision or the area covered
thereby, the parties hereto agree that the court making such termination shall
have the power to reduce the duration and/or area of such provision and, in its
reduced form, such provision shall then be enforceable.
4. The parties hereto intend to and hereby confer jurisdiction to enforce
the Restrictive Covenants upon the courts of any jurisdiction within the
geographical scope of such
5
Restrictive Covenants. In the event that the courts of any one or more of such
jurisdictions shall hold such Restrictive Covenants wholly unenforceable by
reason of the breadth of such scope or otherwise, it is the intention of the
parties hereto that such determination not bar or in any way affect the
Company's right to the relief provided above in the courts of any other
jurisdictions within the geographical scope of such Restrictive Covenants, as to
breaches of such covenants in such other respective jurisdictions, the above
covenants as they relate to each jurisdiction being, for this purpose, severable
into diverse and independent covenants.
F. Termination; Bases for Termination.
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1. Executive's employment hereunder may be terminated at any time by
mutual agreement of the parties.
2. This Agreement shall automatically terminate on the last day of the
month in which Executive dies or becomes permanently incapacitated. "Permanent
incapacity" as used herein shall mean mental or physical incapacity, or both,
reasonably determined by the Company's Board of Directors based upon a
certification of such incapacity by, in the discretion of the Company's Board of
Directors, either Executive's regularly attending physician or a duly licensed
physician selected by the Company's Board of Directors, rendering Executive
unable to perform substantially all of his duties hereunder and which appears
reasonably certain to continue for at least six (6) consecutive months without
substantial improvement. Executive shall be deemed conclusively to have become
permanently incapacitated on the date the Company's Board of Directors has
determined that Executive is permanently incapacitated and so notifies
Executive.
3. Executive's employment may he terminated by the Company "with
cause," effective upon delivery of written notice to Executive given at any time
(without any necessity for prior notice) if any of the following shall occur:
a. any action by Executive which would be grounds for termination
because of any willful breach of duty, habitual neglect of duty, or continued
incapacity;
b. any material breach of Executive's obligations in Sections D
and E above; or
c. any material acts or events which inhibit Executive from fully
performing his responsibilities to the Company in good faith, such as (i) a
felony criminal conviction; (ii) any other criminal conviction involving
Executive's lack of honesty or Executive's moral turpitude; (iii) drug or
alcohol abuse; or (iv) acts of dishonesty, gross carelessness or gross
misconduct.
4. Executive's employment may be terminated by the Company "without
cause" (for any reason or no reason at all) at any time by giving Executive 60
days prior written notice of termination, which termination shall be effective
on the 60th day following such notice. If
6
Executive's employment under this Agreement is so terminated, the Company shall
make a lump sum cash payment to Executive within 10 days after termination of an
amount equal to (i) Executive's Base Salary for the balance of the term of the
Agreement, plus (ii) any unreimbursed expenses accruing to the date of
termination. For purposes of this provision, Executive's annual Base Salary and
the remaining portion of the term of the Agreement shall be calculated as of the
termination date. After the Company's termination of Executive under this
provision, the Company shall not be obligated to provide the benefits to
Executive (except as may be required by law).
5. Executive may terminate his employment hereunder by giving the
Company 60 days prior written notice, which termination shall be effective on
the 60th day following such notice.
G. Miscellaneous.
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1. Transfer and Assignment. This Agreement is personal as to Executive
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and shall not be assigned or transferred by Executive without the prior written
consent of the Company. This Agreement shall be binding upon and inure to the
benefit of all of the parties hereto and their respective permitted heirs,
personal representatives, successors and assigns.
2. Severability. Nothing contained herein shall be construed to
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require the commission of any act contrary to law. Should there be any conflict
between any provisions hereof and any present or future statute, law, ordinance,
regulation, or other pronouncement having the force of law, the latter shall
prevail, but the provision of this Agreement affected thereby shall be curtailed
and limited only to the extent necessary to bring it within the requirements of
the law, and the remaining provisions of this Agreement shall remain in full
force and effect.
3. Governing Law. This Agreement is made under and shall he construed
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pursuant to the laws of the State of California.
4. Counterparts. This Agreement may be executed in several
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counterparts, including electronically transmitted counterparts, and all
documents so executed shall constitute one agreement, binding on all of the
parties hereto, notwithstanding that all of the parties did not sign the
original or the same counterparts.
5. Entire Agreement. This Agreement constitutes the entire agreement
----------------
and understanding of the parties with respect to the subject matter hereof and
supersedes all prior oral or written agreements, arrangements, and
understandings with respect thereto. No representation, promise, inducement,
statement or intention has been made by any party hereto that is not embodied
herein, and no party shall be bound by or liable for any alleged representation,
promise, inducement, or statement not so set forth herein.
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6. Modification. This Agreement may be modified, amended, superseded,
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or canceled, and any of the terms, covenants, representations, warranties or
conditions hereof may be waived, only by a written instrument executed by the
party or parties to be bound by any such modification, amendment, supersession,
cancellation, or waiver.
7. Attorneys' Fees and Costs. In the event of any dispute arising out
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of the subject matter of this Agreement, the prevailing party shall recover, in
addition to any other damages assessed, its reasonable attorneys' fees and court
costs incurred in litigating or otherwise settling or resolving such dispute
whether or not an action is brought or prosecuted to judgment.
8. Construction. In construing this Agreement, none of the parties
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hereto shall have any term or provision construed against such party solely by
reason of such party having drafted the same.
9. Waiver. The waiver by either of the parties, express or implied,
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of any right under this Agreement or any failure to perform under this Agreement
by the other party, shall not constitute or be deemed as a waiver of any other
right under this Agreement or of any other failure to perform under this
Agreement by the other party, whether of a similar or dissimilar nature.
10. Cumulative Remedies. Each and all of the several rights and
-------------------
remedies provided in this Agreement, or by law or in equity, shall be
cumulative, and no one of them shall be exclusive of any other right or remedy,
and the exercise of any one or such rights or remedies shall not be deemed a
waiver of, or an election to exercise, any other such right or remedy.
11. Headings. The section and other headings contained in this
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Agreement are for reference purposes only and shall not in any way affect the
meaning and interpretation of this Agreement.
12. Notices. Any notice under this Agreement must be in writing, may
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be telecopied, sent by express 24-hour guaranteed courier, or hand-delivered, or
may be served by depositing the same in the United States mail, addressed to the
party to be notified, postage-prepaid and registered or certified with a return
receipt requested. The addresses of the parties for the receipt of notice shall
be as follows:
If to the Company:
Cypress Financial Services, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxxxxx Xxxxxx
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If to Executive:
Xxxxxx Xxxxxxx
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---------------------
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Each notice given by registered or certified mail shall be deemed delivered and
effective on the date of delivery as shown on the return receipt, and each
notice delivered in any other manner shall be deemed to be effective as of the
time of actual delivery thereof. Each party may change its address for notice by
giving notice thereof in the manner provided above.
13. Survival. Any provision of this Agreement which imposes an
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obligation after termination or expiration of this Agreement shall survive the
termination or expiration of this Agreement and be binding on Executive and the
Company.
14. Right of Set-Off. Upon termination or expiration of this
----------------
Agreement, the Company shall have the right to set-off against the amounts due
Executive hereunder the amount of any outstanding loan or advance from the
Company to Executive.
15. Effective Date. This Agreement shall become effective as of the
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date set forth on page 1 when signed by Executive and the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Employment
Agreement to be executed as of the date first set forth above.
"COMPANY" "EXECUTIVE"
Cypress Financial Services, Inc.,
a Nevada corporation
By: /s/ XXXXXXX X. XXXXX /s/ XXXXXX XXXXXXX
----------------------- ---------------------
Name:
-----------------------
Title:
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EMPLOYMENT AGREEMENT
This Employment Agreement is made and entered into as of this 4th day of
September, 1998, by and between Cypress Financial Services, Inc., a Nevada
corporation (the "Company"), and Xxxx Xxxxxxx, an individual ("Executive").
RECITALS
A. The Company desires to engage the services of Executive for the
Company.
B. Executive is willing and desires to be employed by the Company, and the
Company desires to employ Executive, upon the terms, covenants and conditions
hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual terms, covenants and
conditions hereinafter set forth, the parties hereto do hereby agree as follows:
A. Employment. The Company hereby employs Executive as its Chief
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Financial Officer, subject to the supervision and direction of the Company's
Chief Executive Officer.
B. Term. The term of this Agreement shall be for the period commencing on
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the date set forth above and shall continue through August 31, 2001, unless
terminated earlier pursuant to Section F below; provided, however, that
Executive's obligations in Sections D and E below shall continue in effect after
such termination. This three-year period is hereinafter referred to as the
"Term".
C. Compensation; Reimbursement.
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1. Base Salary. For all services rendered by Executive under this
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Agreement, the Company shall pay Executive a base salary of one hundred twenty
five thousand dollars ($125,000) per annum, payable twice monthly in equal
installments (the "Base Salary").
2. Management Bonus. As additional compensation, Executive shall be
----------------
eligible to participate in the management bonus pool to be established by the
Board of Directors and administered by the Compensation Committee. The bonus
pool will consist of an amount equal to a percentage of the Company's net income
before income taxes, excluding extraordinary gains and any residual income from
securitizations. The bonus percentage will start once the Company has achieved a
minimum net income figure and will increase pursuant to a graduated schedule up
to a ceiling of ten percent (10%). Executive may earn an annual bonus of an
amount up to 60% of his base salary.
3. Stock Options. The Company shall, pursuant to the Company's stock
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option plan, grant to Executive an option to purchase 100,000 shares of the
Company's common stock
1
at an exercise price of $1.3125 per share. The option shall vest immediately
upon grant as to 10,000 shares, with the balance of the option vesting at the
rate of 7,500 shares per quarter over the three year period following the grant.
Under the Company's stock option plan, no options can be exercised during the
first six (6) months following the date of the grant.
4. Stock Purchase Loan. The Company agrees to loan to Executive up to
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Fifty thousand dollars ($50,000) to be used by Executive to purchase shares of
the Company's publicly traded common stock on the open market. The loan shall be
evidenced by a Recourse Secured Promissory Note, substantially in the form of
the attached Exhibit A. The loan shall be secured by a pledge of the common
stock so acquired pursuant to the terms of a Pledge Agreement and Security
Interest in the Proceeds of Sale, substantially in the form of the attached
Exhibit B.
5. Additional Benefits. In addition to the Base Salary and the
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Management Bonus, Executive shall be entitled to all other benefits of
employment provided to other officers and key employees of the Company,
including the Company's medical, dental and other insurance and health and
welfare plans.
6. Reimbursement. Executive shall be reimbursed for all reasonable
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"out-of-pocket" business expenses and disbursements for business travel and
business entertainment incurred in connection with the performance of his duties
under this Agreement (1) so long as such expenses constitute business deductions
(in whole or in part) from taxable income for the Company and are excludable
from taxable income to the Executive under the governing laws and regulations of
the Internal Revenue Code (provided, however, that Executive shall be entitled
to full reimbursement in any case where the Internal Revenue Service may, under
Section 274(n) of the Internal Revenue Code, disallow to the Company 20% of
meals and entertainment expenses); and (2) to the extent such expenses do not
exceed the amounts allocable for such expenses in budgets that are approved from
time to time by the Company. The reimbursement of Executive's business expenses
shall be upon monthly presentation to and approval by the Company of valid
receipts and other appropriate documentation for such expenses.
7. Relocation. The Company shall pay to Executive a one-time non-
----------
accountable relocation allowance in the amount of ten thousand dollars
($10,000); provided, however, Executive shall be obligated to repay the entire
allowance in the event that, within ninety (90) days from the date hereof,
Executive voluntarily terminates, or the Company for cause terminates, his
employment.
8. Withholdings. All compensation paid to Executive shall be subject
------------
to customary withholding tax and other employment taxes as are required with
respect to compensation paid by a corporation to an employee.
D. Duties and Responsibilities.
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1. Full-time. Executive shall, during the Term of this Agreement,
---------
devote his full attention and expand his best efforts, energies, and skills, on
a full-time basis, to the business of the Company and any corporation controlled
by the Company. For purposes of this Agreement,
2
the term the "Company" shall mean the Company and all Subsidiaries. The Company
agrees that the devotion of reasonable amounts of time to business activities
separate from and outside the scope of the business of the Company will not
violate the terms of this Agreement, on the conditions that (i) such activities
are not corporate opportunities of the Company; and (ii) such activities do not
interfere with the performance of Executive's duties hereunder.
2. Duties set by Board. During the Term of this Agreement, Executive
-------------------
shall serve as the Chief Financial Officer of the Company or in such other
capacity as determined by the Board of Directors or an Executive Committee, if
any. In the performance of all of his responsibilities hereunder, Executive
shall be subject to all of the Company's policies, rules, and regulations
applicable to its executives of comparable status and shall report directly to,
and shall be subject to the direction and control of the Board of Directors of
the Company and shall perform such duties as shall be assigned to him by the
Board of Directors or its Executive Committee, if any. In performing such
duties, Executive will be subject to and abide by, and will use his best efforts
to cause other employees of the Company to be subject to and abide by, all
policies and procedures developed by the Board of Directors or its Executive
Committee, if any.
3. Conflicting Activities.
----------------------
a. Executive shall not, during the term of this Agreement, be
engaged in any other business activity without the prior consent of the Board of
Directors of the Company; provided, however, that this restriction shall not be
construed as preventing Executive from investing his personal assets in passive
investments in business entities which are not in competition with the Company
or its affiliates.
b. Executive hereby agrees to promote and develop all business
opportunities that come to his attention relating to current or anticipated
future business of the Company, in a manner consistent with the best interests
of the Company and with his duties under this Agreement. Should Executive
discover a business opportunity that does not relate to the current or
anticipated future business of the Company, he shall first offer such
opportunity to the Company. Should the Board of Directors of the Company not
exercise its right to pursue this business opportunity within a reasonable
period of time, not to exceed sixty (60) days, then Executive may develop the
business opportunity for himself, provided, however, that such development may
in no way conflict or interfere with the duties owed by Executive to the Company
under this Agreement. Further, Executive may develop such business opportunities
only on his own time, and may not use any service, personnel, equipment,
supplies, facility, or trade secrets of the Company in their development. As
used herein, the term "business opportunity" shall not include business
opportunities involving investment in publicly traded stocks, bonds or other
securities, or other investments of a personal nature.
4. Full Authority of Executive. To induce the Company to enter into
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this Agreement, Executive represents and warrants to the Company that (a)
Executive is not a party or subject to any employment agreement or arrangement
with any other person, firm, company, corporation or other business entity, (b)
Executive is subject to no restraint, limitation or restriction by virtue of any
agreement or arrangement, or by virtue of any law or rule of law or
3
otherwise which would impair the Executive's right or ability (i) to enter the
employ of the Company, or (ii) to perform fully his duties and obligations
pursuant to this Agreement, and (c) to the best of Executive's knowledge no
material litigation is pending or threatened against any business or business
entity owned or controlled or formerly owned or controlled by Executive.
E. Restrictive Covenants.
---------------------
1. Executive acknowledges that (i) he has a major responsibility for
portfolio management and strategies, empirical modeling, control of accounting
systems and procedures, and preparation of financial statements for the
Company's business, (ii) his work for the Company has brought him and will
continue to bring him into close contact with confidential information of the
Company and its customers, and (iii) the agreements and covenants contained in
this Section E.1 are essential to protect the business interest of the Company
and that the Company will not enter into this Agreement but for such agreements
and covenants. Accordingly, the Executive covenants and agrees as follows:
a. Except as otherwise provided for in this Agreement, during the
Term of this Agreement and, if this Agreement is terminated under Section F.3 or
F.5 during the Term, for two (2) years following such date of termination (the
"Termination Period"), the Executive shall not, directly or indirectly, compete
with respect to any services or products of the Company which are either offered
or are being developed by the Company as of the date of termination; or, without
limiting the generality of the foregoing, be or become, or agree to be or
become, interested in or associated with, in any capacity (whether as a partner,
shareholder, owner, officer, director, Executive, principal, agent, creditor,
trustee, consultant, co-venturer or otherwise) any individual, corporation,
firm, association, partnership, joint venture or other business entity, which
competes with respect to any services or products of the Company which are
either offered or are being developed by the Company as of the date of
termination; provided, however, that the Executive may own, solely as an
investment, not more than two percent (2%) of any class of securities of any
publicly held corporation in competition with the Company whose securities are
traded on any national securities exchange in the United States of America.
b. During the term of this Agreement and, if applicable, during the
Termination Period, the Executive shall not, directly or indirectly, (i) induce
or attempt to influence any executive of the Company to leave its employ, or
(ii) induce or attempt to influence any person or business entity who was a
customer or supplier of the Company during any portion of said period to
transact business with a competitor of the Company in Company's business.
c. During the Term of this Agreement, the Termination Period, if
applicable, and thereafter, the Executive shall not disclose to anyone any
information about the affairs of the Company, including, without limitation,
trade secrets, trade "know-how", inventions, customer lists, business plans,
operational methods, pricing policies, marketing plans, sales plans, identity of
suppliers or customers, sales, profits or other financial information, which is
confidential to the Company or is not generally known in the relevant trade, nor
shall the Executive make use of any such information for his own benefit.
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2. If the Executive breaches, or threatens to commit a breach of
Section E.1 (the Restrictive Covenants), the Company shall have the following
rights and remedies, each of which shall be enforceable, and each of which is in
addition to, and not in lieu of, any other rights and remedies available to the
Company at law or in equity.
a. The Executive shall account for and pay over to the Company
all compensation, profits, and other benefits, after taxes, which inure to
Executive's benefit which are derived or received by the Executive or any person
or business entity controlled by the Executive resulting from any action or
transactions constituting a breach of any of the Restrictive Covenants,
b. Notwithstanding the provisions of subsection a. above, the
Executive acknowledges and agrees that in the event of a violation or threatened
violation of any of the provisions of Section E.1, the Company shall have no
adequate remedy at law and shall therefore be entitled to enforce each such
provision by temporary or permanent injunctive or mandatory relief obtained in
any court of competent jurisdiction without the necessity of proving damages,
posting any bond or other security, and without prejudice to any other rights
and remedies which may be available at law or in equity.
3. If any of the Restrictive Covenants, or any part thereof, is held
to be invalid or unenforceable, the same shall not affect the remainder of the
covenant or covenants, which shall be given full effect, without regard to the
invalid or unenforceable portions. Without limiting the generality of the
foregoing, if any of the Restrictive Covenants, or any part thereof, is held to
be unenforceable because of the duration of such provision or the area covered
thereby, the parties hereto agree that the court making such termination shall
have the power to reduce the duration and/or area of such provision and, in its
reduced form, such provision shall then be enforceable.
4. The parties hereto intend to and hereby confer jurisdiction to
enforce the Restrictive Covenants upon the courts of any jurisdiction within the
geographical scope of such Restrictive Covenants. In the event that the courts
of any one or more of such jurisdictions shall hold such Restrictive Covenants
wholly unenforceable by reason of the breadth of such scope or otherwise, it is
the intention of the parties hereto that such determination not bar or in any
way affect the Company's right to the relief provided above in the courts of any
other jurisdictions within the geographical scope of such Restrictive Covenants,
as to breaches of such covenants in such other respective jurisdictions, the
above covenants as they relate to each jurisdiction being, for this purpose,
severable into diverse and independent covenants.
F. Termination; Bases for Termination.
-----------------------------------
1. Executive's employment hereunder may be terminated at any time by
Mutual agreement of the parties.
2. This Agreement shall automatically terminate on the last day of the
month in which Executive dies or becomes permanently incapacitated. "Permanent
incapacity" as used herein shall mean mental or physical incapacity, or both,
reasonably determined by the Company's
5
Board of Directors based upon a certification of such incapacity by, in the
discretion of the Company's Board of Directors, either Executive's regularly
attending physician or a duly licensed physician selected by the Company's Board
of Directors, rendering Executive unable to perform substantially all of his
duties hereunder and which appears reasonably certain to continue for at least
six (6) consecutive months without substantial improvement. Executive shall be
deemed conclusively to have become permanently incapacitated on the date the
Company's Board of Directors has determined that Executive is permanently
incapacitated and so notifies Executive.
3. Executive's employment may be terminated by the Company "with
cause," effective upon delivery of written notice to Executive given at any
time (without any necessity for prior notice) if any of the following shall
occur:
a. any action by Executive which would be grounds for termination
because of any willful breach of duty, habitual neglect of duty, or
continued incapacity;
b. any material breach of Executive's obligations in Sections D
and E above; or
c. any material acts or events which inhibit Executive from fully
performing his responsibilities to the Company in good faith, such as (i) a
felony criminal conviction; (ii) any other criminal conviction involving
Executive's lack of honesty or Executive's moral turpitude; (iii) drug or
alcohol abuse; or (iv) acts of dishonesty, gross carelessness or gross
misconduct.
4. Executive's employment may be terminated by the Company "without
cause" (for any reason or no reason at all) at any time by giving Executive 60
days prior written notice of termination, which termination shall be effective
on the 60th day following such notice. If Executive's, employment under this
Agreement is so terminated, the Company shall make a lump sum cash payment to
Executive within 10 days after termination of an amount equal to (i) Executive's
Base Salary for the balance of the term of the Agreement, plus (ii) any
unreimbursed expenses accruing to the date of termination. For purposes of this
provision, Executive's annual Base Salary and the remaining portion of the term
of the Agreement shall he calculated as of the termination date. After the
Company's termination of Executive under this provision, the Company shall not
be obligated to provide the benefits to Executive (except as may be required by
law).
5. Executive may terminate his employment hereunder by giving the
Company 60 days prior written notice, which termination shall be effective on
the 60th day following such notice.
G. Miscellaneous.
1. Transfer and Assignment. This Agreement is personal as to
-----------------------
Executive and shall not be assigned or transferred by Executive without the
prior written consent of the Company.
6
This Agreement shall be binding upon and inure to the benefit of all of the
parties hereto and their respective permitted heirs, personal representatives,
successors and assigns.
2. Severability. Nothing contained herein shall be construed to
------------
require the commission of any act contrary to law. Should there be any conflict
between any provisions hereof and any present or future statute, law, ordinance,
regulation, or other pronouncement having the force of law, the latter shall
prevail, but the provision of this Agreement affected thereby shall be curtailed
and limited only to the extent necessary to bring it within the requirements of
the law, and the remaining provisions of this Agreement shall remain in full
force and effect.
3. Governing Law. This Agreement is made under and shall be construed
-------------
pursuant to the laws of the State of California.
4. Counterparts. This Agreement may be executed in several
------------
counterparts, including electronically transmitted counterparts, and all
documents so executed shall constitute one agreement, binding on all of the
parties hereto, notwithstanding that all of the parties did not sign the
original or the same counterparts.
5. Entire Agreement. This Agreement constitutes the entire agreement
----------------
and understanding of the parties with respect to the subject matter hereof and
supersedes all prior oral or written agreements, arrangements, and
understandings with respect thereto. No representation, promise, inducement,
statement or intention has been made by any party hereto that is not embodied
herein, and no party shall be bound by or liable for any alleged representation,
promise, inducement, or statement not so set forth herein.
6. Modification. This Agreement may he modified, amended, superseded,
------------
or canceled, and any of the terms, covenants, representations, warranties or
conditions hereof may be waived, only by a written instrument executed by the
party or parties to be bound by any such modification, amendment, supersession,
cancellation, or waiver.
7. Attorneys' Fees and Costs. In the event of any dispute arising out
-------------------------
of the subject matter of this Agreement, the prevailing party shall recover, in
addition to any other damages assessed, its reasonable attorneys' fees and court
costs incurred in litigating or otherwise settling or resolving such dispute
whether or not an action is brought or prosecuted to judgment.
8. Construction. In construing this Agreement, none of the parties
------------
hereto shall have any term or provision construed against such party solely by
reason of such party having drafted the same.
9. Waiver. The waiver by either of the parties, express or implied, of
------
any right under this Agreement or any failure to perform under this Agreement by
the other party, shall not constitute or be deemed as a waiver of any other
right under this Agreement or of any other failure to perform under this
Agreement by the other party, whether of a similar or dissimilar nature.
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10. Cumulative Remedies. Each and all of the several rights and
-------------------
remedies provided in this Agreement, or by law or in equity, shall he
cumulative, and no one of them shall he exclusive of any other right or remedy,
and the exercise of any one or such rights or remedies shall not be deemed a
waiver of, or an election to exercise, any other such right or remedy.
11. Headings. The section and other headings contained in this
--------
Agreement are for reference purposes only and shall not in any way affect the
meaning and interpretation of this Agreement.
12. Notices. Any notice under this Agreement must be in writing, may
-------
be telecopied, sent by express 24-hour guaranteed courier, or hand-delivered, or
may be served by depositing the same in the United States mail, addressed to the
party to be notified, postage-prepaid and registered or certified with a return
receipt requested. The addresses of the parties for the receipt of notice shall
be as follows:
If to the Company:
Cypress Financial Services, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxxxxx Xxxxxx
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If to Executive:
Xxxx Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Each notice given by registered or certified mail shall be deemed delivered and
effective on the date of delivery as shown on the return receipt, and each
notice delivered in any other manner shall be deemed to be effective as of the
time of actual delivery thereof. Each party may change its address for notice by
giving notice thereof in the manner provided above.
13. Survival. Any provision of this Agreement which imposes an
--------
obligation after termination or expiration of this Agreement shall survive the
termination or expiration of this Agreement and be binding on Executive and the
Company.
14. Right of Set-Off. Upon termination or expiration of this
----------------
Agreement, the Company shall have the right to set-off against the amounts due
Executive hereunder the amount of any outstanding loan or advance from the
Company to Executive,
15. Effective Date. This Agreement shall become effective as of the
--------------
date set forth on page 1 when signed by Executive and the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Employment
Agreement to be executed as of the date first set forth above.
"COMPANY" "EXECUTIVE"
Cypress Financial Services, Inc.,
a Nevada corporation
By: /s/ XXXXXXX X. XXXXX /s/ XXXX XXXXXXX
--------------------------------- ---------------------------------
Name: Xxxx Xxxxxxx
-----------------
Title:
--------------------------
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