Exhibit 10.11
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") dated as of August 16, 2006 by
and between EVOLVE ONE, INC. of 0000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxx
Xxxxx, Xxxxxxx 00000, a Florida corporation (the "Company"), and XXXXX XXXXX
("Executive") of 0000 Xxxxxx Xxxxx Xxxxx, Xxxxxx Xxxxx, Xxxxxxx 00000.
WITNESSETH:
WHEREAS, on August 16, 2006 the Company entered into a stock exchange
agreement (the "Stock Exchange Agreement") with China Direct Investments, Inc.,
a Florida corporation ("China Direct") which was accounted for as a reverse
acquisition of the Company by China Direct, with the business and operations of
China Direct becoming the business and operations of the Company;
WHEREAS, as a result of the Stock Exchange Agreement, the Company is
now engaged in the business of developing business opportunities in the People's
Republic of China;
WHEREAS, at the time of the Stock Exchange Agreement the Executive was
a party to an employment agreement dated January 1, 2005 with China Direct (the
"Prior Agreement");
WHEREAS, pursuant to the terms of the Stock Exchange Agreement the
Prior Agreement would be cancelled and the Executive and the Company would enter
into a new employment agreement upon terms and conditions substantially similar
to the Prior Agreement; and
WHEREAS, the Company desires to employ Executive and to enter into an
Agreement embodying the terms of such employment; and
WHEREAS, Executive desires to accept such employment and enter into
such Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein and for other good and valuable consideration, the parties agree as
follows:
1. Term of Employment. Executive shall be employed by the Company for a period
commencing as of August 16, 2006 (the "Commencement Date") and ending December
31, 2009 (the "Employment Term") on the terms and subject to the conditions set
forth in this Agreement.
2. Position and Location.
a. Positions. Effective on the Commencement Date, Executive shall serve as the
Chief Operating Officer and Secretary of the Company, and shall be appointed to
serve as a member of the Board of Directors of the Company without additional
compensation. At all times, Executive shall have such duties and authority as
are commensurate with his then position and shall report only to the Board of
Directors. In his capacity as COO of the Company, Executive shall be authorized
to incur obligations and undertake agreements and commitments on behalf of the
Company without approval of the Board of Directors, provided that approval shall
be obtained from the Board of Directors or the Chairman of the Board for such
obligations, agreements and commitments exceeding $25,000.00. Executive
represents and warrants to the Company that he is free to accept employment with
the Company as contemplated herein and has no other written or oral obligations
or commitments of any kind or nature which would in any way interfere with his
acceptance of employment pursuant to the terms hereof or the full performance of
his obligations hereunder or the exercise of his best efforts in his employment
hereunder. In the event that Executive is not retained by the Company or by the
Board of Directors as a director and/or COO of the Company during the term
hereof, the Company will not deemed to be in breach of this Agreement.
b. Time Devoted. During the Employment Term, Executive will devote such time and
efforts as may be necessary or appropriate to fulfill his duties and
responsibilities hereunder.
c. Principal Offices. Unless otherwise mutually agreed by the parties,
Executive's principal offices shall be located at the Company's headquarters in
Palm Beach County or surrounding counties in Florida.
d. Compliance with Laws. Executive acknowledges that the Company is subject to
various laws, statutes and high ethical standards by reason of the nature of its
business activities, and Executive agrees to fully comply with all laws, rules
and statutes and ethical standards applicable to the Company.
3. Base Salary and Other Compensation.
(a) Base Salary. Executive shall be entitled to receive a base salary during the
term of this Agreement as follows:
(i) Fiscal Year Amount
2006 $75,000
2007 $100,000
2008 $100,000
2009 $125,000
(b) Options. Under the terms of the Prior Agreement, China Direct had granted
the Executive options to purchase an aggregate of 1,100,000 shares of its common
stock, which vested over a five year period (the "CDI Options"). Pursuant to the
terms of the Stock Exchange Agreement, the CDI Options were exchanged for
options to purchase shares of the Company's common stock upon the same terms and
conditions as the CDI Options, as follows:
Option Vesting
No. of Options Price Term Date
200,000 $ 0.01 5 years 01/01/2005
200,000 $ 2.50 5 years 01/01/2006
200,000 $ 5.00 5 years 01/01/2007
250,000 $ 7.50 5 years 01/01/2008
250,000 $10.00 5 years 01/01/2009
(c) Bonuses. The Company's Board of Directors, or a duly
established committee thereof, shall meet annually and, in its discretion,
authorize payment of an annual bonus to Executive based upon their evaluation of
factors including revenues generated, net income achieved and such other
financial and operational factors as the Board of Directors deems appropriate.
4. Employee Benefits. During the Employment Term, Executive shall be entitled to
participate in the Company's employee benefit plans as in effect from time to
time. During each fiscal year of the Company, Executive shall be entitled to
reasonable vacation time, provided that the Executive shall evidence reasonable
judgment with regard to appropriate vacationing scheduling. Subject to the
foregoing, Executive shall be entitled to three (3) weeks vacation per year,
with any unused vacation time to lapse as of the conclusion of the related
fiscal year, unless the Board of Directors shall authorize the accruing of such
unused vacation time.
5. Business Expenses. During the Employment Term, reasonable business expenses
incurred by Executive in the performance of Executive's duties hereunder shall
be reimbursed by the Company in accordance with Company policies.
6. Termination.
a. By Company for Cause, Death or Disability or by Executive's
Voluntary Resignation.
(i) The Employment Term and Executive's employment hereunder may be terminated
by the Company for Cause, Death or Disability and shall terminate automatically
upon Executive's resignation.
(ii) For purposes of this Agreement, "Cause" shall mean (A) willful malfeasance
or willful misconduct by Executive in connection with his employment, (B)
failure of Executive to perform his material duties under this Agreement after
written notice of his failure to so perform (other than as a result of physical
or mental incapacity), (C) Executive's material willful and knowing breach of
the Agreement that remains uncured for a period of ten (10) business days
following Executive's receipt of written notice from the Company describing such
breach, (D) committing or participating in an injurious act, gross neglect or
material omission of responsibilities hereunder after written notice thereof,
which remains uncured for a period of ten (10) business days following
Executive's receipt of written notice from the Company describing such breach;
or (E) engaging in a criminal enterprise involving moral turpitude,
embezzlement, or conviction of an act or acts constituting a felony under the
laws of the United States or any state thereof. For the purposes of this
Agreement, no act, or failure to act, on Executive's part shall be considered
"willful" unless done or omitted to be done by him not in good faith and without
reasonable belief that his action or omission was in the best interests of the
Company. The date of termination for a termination for Cause shall be the date
indicated in the Notice of Termination.
(iii) For purposes of this Agreement, "Disability" shall mean Executive's
inability to perform his material duties for a period of at least three (3)
consecutive months or an aggregate of five (5) months in any twenty-four (24)
month period as a result of a physical or mental incapacity. The Company may
terminate Executive due to Disability on thirty (30) days prior written notice
given during the period Executive is unable to perform his material duties as a
result of a physical or mental incapacity; provided, however, that Executive has
not returned to the performance of his material duties prior to the end of the
applicable three (3) month or five (5) month period described above.
(iv) If Executive's employment is terminated by the Company for Cause, Death or
Disability or if Executive resigns, Executive shall be entitled to receive the
following benefits:
(A) the Base Salary through the date of termination;
(B) any Sign-On or Annual Bonus earned, but unpaid, as of the date of
termination for any previously completed fiscal year;
(C) reimbursement for any unreimbursed business expenses incurred by Executive
in accordance with Company policy prior to the date of Executive's termination;
and
(D) such Employment Benefits, if any, as to which Executive may be legally
entitled under the employee benefit plans and equity plans of the Company (the
amounts described in clauses (A) through (D) hereof being referred to as the
"Accrued Rights").
Following such termination of Executive's employment by the
Company for Cause, Death or Disability or resignation by Executive, except as
set forth in this Section, Executive shall have no further rights to any
compensation or any other benefits under this Agreement or any other severance
plan, severance policy or severance arrangement of the Company or its
affiliates, except as provided in this Agreement.
b. By the Company Without Cause.
(i) The Employment Term and Executive's employment hereunder may be terminated
by the Company without Cause.
(ii) If Executive's employment is terminated by the Company without Cause (other
than by reason of Death or Disability), Executive shall be entitled to:
(A) receive the Accrued Rights;
(B) receive continued payment of the Base Salary until the earlier of eighteen
(18) months or the expiration of the Employment Term determined as if such
termination had not occurred; and
(C) full vesting of all Options which have theretofore not vested.
Following Executive's termination of employment by the Company
without Cause (other than by reason of Executive's Death or Disability) or by
Executive's resignation, except as set forth in this Section 6.b.(ii), Executive
shall have no further rights to any compensation or any other benefits under
this Agreement or any other severance plan, severance policy or severance
arrangement of the Company or its affiliates except as provided in this
Agreement.
c. Expiration of the Employment Term. If Executive and the
Company have not mutually agreed to extend the Employment Term, the Company and
Executive have not entered into a new employment agreement, the Employment Term
and Executive's employment with the Company shall terminate on December 31,
2009, and such termination shall not be considered a termination by the Company
without Cause.
d. Notice of Termination. Any purported termination of employment by the Company
or by Executive (other than due to Executive's Death or Disability) before the
expiration of the Employment Term shall be communicated by written Notice of
Termination to the other party hereto in accordance with Section 9.g. hereof.
For purposes of this Agreement, a "Notice of Termination" shall mean a notice
which shall indicate the specific termination provision relied upon and shall
set forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of employment under the provision so indicated, unless the
notice is provided pursuant to Section 1 hereof.
7. Confidentiality. Executive will not at any time (whether during or after
Executive's employment with the Company) disclose or use for Executive's own
benefit or purposes or the benefit or purposes of any other person, firm,
partnership, joint venture, association, corporation or other business
organization, entity or enterprise other than the Company and any of its
subsidiaries or affiliates, any trade secrets, information, data or other
confidential information relating to customers, development programs, costs,
marketing, trading, investment, sales activities, promotion, credit and
financial data, manufacturing processes, financing methods, plans or the
business and affairs of the Company, generally, or of any subsidiary or
affiliate of the Company, except in the performance of his duties hereunder or
in compliance with legal process; provided, however, that the foregoing shall
not apply to information which is not unique to the Company, or which is
generally known to the industry or the public other than as a result of
Executive's breach of this covenant. In the event that Executive is compelled by
legal process to disclose confidential information, he shall give prompt written
notice to the Company to allow the Company the opportunity to object to or
otherwise resist such order. Executive agrees that upon termination of
Executive's employment with the Company for any reason, he will return to the
Company immediately all memoranda, books, papers, plans, information, letters
and other data, and all copies thereof or therefrom in any way relating to the
business of the Company and its affiliates, except that he may retain personal
notes, notebooks and diaries that do not contain confidential information of the
type described in the preceding sentence. Executive shall be bound by the
nondisclosure provisions of this Section 7. Executive further agrees that he
will not retain or use for Executive's account at any time any trade names,
trademark or other proprietary business designation used or owned in connection
with the business of the Company or its affiliates.
8. Indemnification. The Company shall indemnify and hold harmless Executive to
the fullest extent permitted by law for any action or inaction of Executive
while serving as an officer and director of the Company or, at the Company's
request, as an officer or director of any other entity or as a fiduciary of any
benefit plan, provided Executive has not been terminated For Cause. The Company
shall also indemnify and hold Executive harmless in the event that Executive is
asked to honor and discharge any personal guarantees he has provided to the
Company either subsequent to or prior to its organization.
9. Non-Competition.
(a) Precluded Conduct. Executive acknowledges and recognizes the highly
competitive nature of the businesses of the Company and accordingly agrees as
follows:
(i) During the Employment Term and for a period of one (1) year following the
date Executive ceases to be employed by the Company (the "Restricted Period"),
Executive will not, directly or indirectly, in and from any location in the
State of Florida (A) engage in any business relating to the conduct of business
in the People's Republic of China or in the promotion of Chinese-based
businesses in the United States, (B) enter the employ of, or render any services
to, any person or entity engaged in any business relating to the conduct of
business in the People's Republic of China or in the promotion of Chinese-based
businesses in the United States, (C) acquire a financial interest in, or
otherwise become actively involved with, any person or entity engaged in any
business relating to the conduct of business in the People's Republic of China
or in the promotion of Chinese-based businesses in the United States, as an
individual, partner, shareholder, officer, director, principal, agent, trustee
or consultant, or (D) interfere with, or attempt to interfere with, business
relationships (whether formed before or after the date of this Agreement)
between the Company and customers, clients, suppliers, partners, members or
investors of the Company relating to the conduct of business in the People's
Republic of China or in the promotion of Chinese-based businesses in the United
States.
(ii) Notwithstanding anything to the contrary in this Agreement, Executive may,
directly or indirectly, own solely as an investment, securities of any person or
entity engaged in the business of the Company which are publicly traded on a
national or regional stock exchange or on the over-the-counter market or are
owned through a mutual fund, private equity fund or other pooled account if
Executive (A) is not a controlling person of, or a member of, a group which
controls such person or entity, and (B) does not, directly or indirectly, own 3%
or more of any class of securities of such person or entity. Furthermore, the
limitations in (i) shall not apply to serving as a director of an entity if less
than ten percent of such entity's revenues (measured by the last fiscal year of
the entity ending prior to the date Executive accepts such a role) are from
materially competitive activities, subject to the Board's (or the Company's
principal executive officer other than Executive, as the case may be) approval
during the Employment Term.
(b) Reasonable Construction of Contract. It is expressly understood and agreed
that although Executive and the Company consider the restrictions contained in
this Section 9 to be reasonable, if a final judicial determination is made by a
court of competent jurisdiction that the time or territory or any other
restriction contained in this Agreement is an unenforceable restriction against
Executive, the provisions of this Agreement shall not be rendered void, but
shall be deemed amended to apply as to such maximum time and territory and to
such maximum extent as such court may judicially determine or indicate to be
enforceable. Alternatively, if any court of competent jurisdiction finds that
any restriction cannot be amended so as to make it enforceable, such finding
shall not affect the enforceability of any of the other restrictions herein.
10. Miscellaneous.
a. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida without regard to conflicts of
laws principles thereof.
b. Entire Agreement/Amendments. This Agreement contains the entire understanding
of the parties with respect to the employment of Executive by the Company. There
are no restrictions, agreements, promises, warranties, covenants or undertakings
between the parties with respect to the subject matter herein other than those
expressly set forth herein. This Agreement may not be altered, modified or
amended except by written instrument signed by the parties hereto.
c. No Waiver. The failure of a party to insist upon strict adherence to any term
of this Agreement on any occasion shall not be considered a waiver of such
party's rights or deprive such party of the right thereafter to insist upon
strict adherence to that term or any other term of this Agreement.
d. Severability. In the event that any one or more of the provisions of this
Agreement shall be or become invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions of this
Agreement shall not be affected thereby.
e. Successors; Binding Agreement. This Agreement shall be binding upon the
parties hereto, their heirs, legal representatives, successors and assigns. This
Agreement shall not be assignable by Executive, but shall be assignable by the
Company in connection with the sale, transfer or other disposition of its
business or to any of the Company's affiliated, controlled or other companies
under common control with the Company.
f. Headings. The headings of this Agreement are for convenience only and shall
not control or affect the meaning or construction or limit the scope or intent
of any of the provisions of this Agreement.
g. Notice. For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered by hand or overnight courier or
three days after it has been mailed by United States registered mail, return
receipt requested, postage prepaid, addressed to the respective addresses set
forth below, or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notice of change of address
shall be effective only upon receipt.
If to the Company: Evolve One, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
If to Executive: To the most recent address of
Executive set forth in the
personnel records of the Company.
h. Independent Counsel. The Company and Executive agree that
each of them have been, or were advised and fully understand, that they are
entitled to be represented by independent legal counsel with respect to all
matters contemplated herein from the commencement of negotiations at all times
through the execution hereof.
11. Withholding Taxes. The Company may withhold from any amounts payable under
the Agreement such federal, state and local taxes as may be required to be
withheld pursuant to any applicable law or regulation.
12. Counterparts. This Agreement may be signed in counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
13. Enforcement. Should it be necessary for any party to institute legal action
to enforce the terms and conditions of this Agreement, the successful party will
be awarded reasonable attorneys' fees in any arbitration proceedings or in any
court and appellate proceedings together with related expenses and costs.
14. Arbitration. Any dispute, controversy or claim arising out of or in
connection with this Agreement, including any questions regarding its existence,
validity or termination, shall be finally resolved by arbitration by the
American Arbitration Association except as otherwise provided hereafter. Any
such dispute, controversy or claim shall be submitted to a board of arbitrators
composed of three competent disinterested persons, one to be chosen by the
Company, one by Executive and the third to be selected by the two arbitrators so
chosen. Such arbitration shall take place in Palm Beach County, Florida. The
prevailing party shall be entitled to reimbursement of any and all fees of the
arbitration proceedings. As to any claim for the award of non-monetary or
equitable relief, each party hereby irrevocably submits to the exclusive
jurisdiction of the state courts sitting in the County of Palm Beach, State of
Florida.
The arbitrators may not award non-monetary or equitable relief
of any sort. They shall have no power to award punitive damages or any other
damages not measured by the prevailing party's actual damages, and the parties
expressly waive their right to obtain such damages in arbitration or in any
other forum. In no event, even if any other portion of these provisions is held
to be invalid or unenforceable, shall the arbitrators have power to make an
award or impose a remedy that could not be made or imposed by a court deciding
the matter in the same jurisdiction. No discovery will be permitted in
connection with the arbitration unless it is expressly authorized by the
arbitration panel upon a showing of substantial need by the party seeking
discovery. All aspects of the arbitration shall be treated as confidential.
Neither the parties nor the arbitrators may disclose the existence, content or
results of the arbitration, except as necessary to comply with legal or
regulatory requirements. Before making any such disclosure, a party shall give
written notice to all other parties and shall afford such parties a reasonable
opportunity to protect their interests. The result of the arbitration will be
binding on the parties, and judgment on the arbitrators' award may be entered in
any court having jurisdiction.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
EVOLVE ONE, INC.
By: /s/ Xxxxx Xxxxxx
-------------------------
Authorized Person
XXXXX XXXXX
