EXHIBIT 10.1
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into on December 1,
2003 between NEW CAPITAL IWORKS INC., a Delaware corporation ("Employer"), and
XXXXXXX XXXX ("Employee").
R E C I T A L
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Employer wishes to employ Employee, and Employee agrees to serve, as
Director of Business Development for Employer, subject to the terms and
conditions set forth below.
A G R E E M E N T
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It is agreed as follows:
1. DUTIES OF EMPLOYEE. Employee shall serve in the capacity as Director
of Business Development. Employee's principal duties and responsibilities shall
consist of the planning and development of the Company's new business line
including but not limited to the supervision of all marketing activities, the
further refinement and development of the business model, establishing new
industry contacts to be used for future operations, and assisting with the
development of additional financing channels. Upon the successful closing of the
next round of financing, Employee shall be promoted to Chief Operating Officer
with the duties and responsibilities assigned to that position to be detailed at
a later date. Employee shall perform such other services and duties as may from
time to time be assigned to Employee by Employer's Chairman and Chief Executive
Officer or Board of Directors provided that such other services and duties are
not inconsistent with any other term of this Agreement. Except during vacation
periods or in accordance with Employer's personnel policies covering Employee
leaves and reasonable periods of illness or other incapacitation, Employee shall
devote his services to Employer's business and interests in a manner consistent
with Employee's title and office and Employer's needs for his services. Employee
shall perform the duties of Employee's office and those assigned to Employee by
the Employer's Chief Executive Officer or Board of Directors with fidelity, to
the best of Employee's ability, and in the best interest of Employer.
2. COMPENSATION OF EMPLOYEE.
2.1 BASE COMPENSATION. During the interim period from the date
of this agreement until the closure of the next round of financing, Employee
shall not be entitled to any cash compensation. Employee's Base Salary ("Base
Salary") shall be reviewed if and at the time this closing occurs, and shall be
set at an appropriate level commensurate with Employee's new duties and
responsibilities at the elevated position of Chief Operating Officer. Base
Salary shall be reviewed at least annually and may be increased at any time and
from time to time as the Compensation Committee of the Board of Directors (the
"Compensation Committee"), in its sole discretion, shall deem appropriate. The
term Base Salary as utilized in this Agreement shall refer to Base Salary as so
increased. Any increase in Base Salary shall not serve to limit or reduce any
other obligation to Employee under this Agreement. Base Salary shall not be
reduced at any time during the Employment Period.
2.2 BONUS COMPENSATION.
2.2.1 ANNUAL BONUS. As additional compensation for
Employee's services subsequent to funding, Employee shall be entitled to an
annual cash bonus (the "Annual Bonus"), to be determined by the majority
decision of the disinterested members of Employer's Compensation Committee. The
Compensation Committee shall consider Employee's Annual Bonus within the first
ninety (90) days following Employer's fiscal year end and shall take into
consideration all relevant matters.
2.2.2 STOCK COMPENSATION. In addition to his Base
Salary and Annual Bonus, and as consideration for Employee's assistance with the
Company's capital raising endeavors, Employee shall be awarded eleven million
(11,000,000) shares of the Company's common stock upon the successful completion
of the next round of financing. The common shares, as issued pursuant to the
terms of this Agreement, shall be duly authorized, validly issued, fully paid
and nonassessable, and shall be free from any liens, encumbrances or
restrictions, other than any applicable restrictions under federal and state
securities laws.
2.2.3 OTHER BONUSES AND INCENTIVES. Furthermore,
Employee shall be eligible to participate in all incentive and bonus plans
available to senior executives of Employer, including all stock option plans
currently in place or any successor thereto, in an amount and on such terms as
shall be determined by the Compensation Committee or as otherwise provided in
the applicable plan. Employee shall also be eligible to participate in all
employee benefit plans, programs, practices or arrangements of Employer in which
other senior executives of Employer are eligible to participate from time to
time, including, without limitation, any qualified or non-qualified pension,
profit sharing and savings plans, any death benefit and disability benefit
plans, and any medical, dental, health and welfare plans on terms and conditions
at least as favorable as provided to other senior executives of Employer. During
the Employment Period, Employee shall also be entitled to all other fringe
benefits and vacation time available to other senior Executives of Employer.
3. EXPENSE REIMBURSEMENTS. Employee shall be reimbursed for reasonable
and actual out-of-pocket expenses incurred by Employee in performance of
Employee's duties and responsibilities hereunder in accordance with Employer's
established personnel policy covering Employee expense reimbursements, as such
policy may be amended, revised or otherwise changed from time to time. Employee
shall furnish proper vouchers and expense reports and shall be reimbursed only
for those expenses which shall be reimbursable.
4. VACATION AND SICK LEAVE. Except as provided in Section 2.2.3 above,
Employee shall be entitled to three (3) weeks vacation per every twelve (12)
month period of employment hereunder. Employee shall also be entitled to leaves
for illness or other incapacitation as is consistent with Employee's title and
Employer's needs for Employee's services, except as otherwise provided for in
Section 5.3.
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5. TERMINATION.
5.1 TERMINATION BY EMPLOYER FOR CAUSE. Employer may terminate
this Agreement and Employee's employment hereunder for Cause (as defined herein)
any time effective upon written notice to Employee. As used herein, the term
"Cause" shall mean:
5.1.1 Habitual neglect in the performance of
Employee's material duties as set forth in Section 1 which continues uncorrected
for a period of seven (7) days after written notice thereof by Employer to
Employee;
5.1.2 Gross negligence involving misfeasance or
nonfeasance by Employee in the performance of Employee's material duties as set
forth in Section 1 which continues uncorrected for a period of seven (7) days
after written notice thereof by Employer to Employee; or
5.1.3 Insubordination in the form of the unexcused or
unexcusable failure to carry out the written instructions of the Board of
Directors of Employer which continues uncorrected for a period of five (5) days
after written notice thereof by Employer to Employee. Any claimed
insubordination will be excusable on the basis that the Board of Directors'
instructions propose a violation of law or actions beyond the control of
Employee.
Upon termination for Cause, Employee will as soon as practicable be paid: (a)
Employee's Base Salary at the usual rate through the date of termination
specified in such notice; and (B) any amounts which Employee has earned under
any Employer benefit plan in accordance with the terms of such plan through the
date of termination.
5.2 TERMINATION WITHOUT CAUSE. Either Employee or Employer may
terminate this Agreement and Employee's employment without Cause on thirty days'
prior written notice. In the event of termination pursuant to this Section 5.2,
compensation will be paid and benefits will be provided to Employee as follows:
5.2.1 If the termination is by Employee without Good
Reason (as defined in Section 5.4 below), Employee will as soon as practicable
be paid: (a) Employee's Base Salary at the usual rate through the date of
termination specified in such notice (but not to exceed thirty days from the
date of such notice); and (B) any amounts which Employee has earned under any
Employer benefit plan in accordance with the terms of such plan through the date
of termination; or
5.2.2 If the termination is by Employer, and except
as provided under Section 5.5, Employer will as soon as practicable pay
Employee: (A) a lump sum payment equal to Employee's Base Salary at the usual
rate for the three (3) months following the date of termination; plus the higher
of his Annual Bonus for the last fiscal year or his average bonus for the past
three years; (B) the proportionate amount of any unpaid bonus or incentive
deemed earned for the year in which the termination takes place; (C) a lump sum
payment equal to any retirements benefits lost as a result of not having been
employed for the remaining term of the Agreement; and (D) a reasonable amount of
outplacement assistance (not to exceed fifteen percent of Employee's Base
Salary).
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5.2.3 Without limiting the generality of the
foregoing, termination on account of Employee's retirement, whether voluntary or
mandatory, and whether normal or early approved, will be considered a
termination by Employee other than for Good Reason.
5.3 TERMINATION UPON DEATH OR DISABILITY. This Agreement and
Employee's employment hereunder shall terminate upon Employee's death or
Disability (as defined herein). For this purpose, "Disability" means incapacity,
whether by reason of physical or mental illness or disability, which prevents
Employee from substantially performing Employee's material duties as set forth
in Section 1 for six (6) months, or for shorter periods aggregating six (6)
months in any twelve (12) successive calendar months. Upon termination for
death, and unless Employer shall have in force a disability insurance policy
providing for benefits in an amount at least equal thereto, upon termination for
Disability, Employer shall continue to pay the Employee's Base Salary to the
surviving spouse of Employee (or if there is none to Employee's estate) in the
case of death and to Employee or Employee's court appointed conservator in the
case of Disability for fifteen (15) months thereafter. Termination for death
shall become effective upon the occurrence of such event and termination for
Disability shall become effective upon written notice by Employer to Employee.
5.4 TERMINATION FOR GOOD REASON. Employee may terminate this
Agreement and Employee's employment upon thirty days' prior written notice to
Employer for Good Reason, which notice must be given within sixty days of the
occurrence of an event constituting Good Reason or will be deemed waived. For
purposes of this Agreement, "Good Reason" means: (i) a reduction by Employer in
Employee's Base Salary to a rate less than the initial Base Salary rate set
forth in this Agreement; (ii) a change in the eligibility requirements or
performance criteria under any employee benefit plan or incentive compensation
arrangement under which Employee is covered on the effective date of this
Agreement, and which materially adversely affects Employee; (iii) Employer
requiring Employee to be based anywhere other than Employer's headquarters or
the relocation of Employer's headquarters more than fifty (50) miles from its
location on the effective date of this Agreement, except for required travel on
Employer's business to the extent substantially consistent with the business
travel obligations which Employee undertook on behalf of Employer on the
effective date of this Agreement; (iv) the assignment to Employee of any duties
or responsibilities which are materially inconsistent with Employee's status or
position as a member of Employer's employee management group; or (v) Employee's
good faith and reasonable determination, after consultation with
nationally-recognized counsel, that Employee is being unduly pressured or
required by the Board or a senior Executive of Employer to directly or
indirectly engage in criminal activity. In the event of termination for Good
Reason pursuant to this Section 5.4., Employer will pay Employee the amounts and
provide the benefits described under Section 5.2.2.
6. EMPLOYEE'S REPRESENTATIONS. Employee represents and warrants that
Employee is free to enter into this Agreement and to perform each of the
provisions contained herein. Employee represents and warrants that Employee is
not restricted or prohibited, contractually or otherwise, from entering into and
performing this Agreement, and that Employee's execution and performance of this
Agreement is not a violation or breach of any agreement between Employee and any
other person or entity.
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7. GENERAL PROVISIONS.
7.1 SEVERABLE PROVISIONS. The provisions of this Agreement are
severable, and if any one or more provisions may be determined to be judicially
unenforceable, in whole or in part, the remaining provisions shall nevertheless
be binding and enforceable.
7.2 ASSIGNMENT. This Agreement shall be binding upon and shall
inure to the benefit of Employer, its successors and assigns and Employer shall
require any successor or assign (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that Employer would be
required to perform if no such succession or assignment had taken place. The
term "Employer" as used herein shall include such successors and assigns. The
term "successors and assigns" as used herein shall mean a corporation or other
entity acquiring all or substantially all the assets and business of Employer
(including this Agreement) whether by operation of law or otherwise. Neither
this Agreement nor any of the rights or obligations of Employee hereunder shall
be assignable except by operation of law or the rules of descent.
7.3 ATTORNEYS' FEES. If any legal action arises under this
Agreement or by reason of any asserted breach of it, the prevailing party shall
be entitled to recover all costs and expenses, including reasonable attorneys'
fees, incurred in enforcing or attempting to enforce any of the terms, covenants
or conditions, including costs incurred prior to commencement of legal action,
and all costs and expenses, including reasonable attorneys' fees, incurred in
any appeal from an action brought to enforce any of the terms, covenants or
conditions.
7.4 NOTICES. Any notice to be given to Employer under the
terms of this Agreement shall be addressed to Employer at the address of
Employer's principal place of business, and any notice to be given to Employee
shall be addressed to Employee at his home address last shown on the records of
Employer, or at such other address as either party may hereafter designate in
writing to the other. Any notice required or permitted under this Agreement
shall be in writing and shall be deemed effective: (i) upon receipt in the event
of delivery by hand, including delivery made by private delivery or overnight
mail service where either the recipient or delivery agent executes a written
receipt or confirmation of delivery; or (ii) 72 hours after deposited in the
Swiss mail, postage prepaid.
7.5 WAIVER. Either party's failure to enforce any provision or
provisions of this Agreement shall not in any way be construed as a waiver of
any such provision or provisions, or prevent that party thereafter from
enforcing each and every other provision of this Agreement.
7.6 ENTIRE AGREEMENT; AMENDMENTS. This Agreement supersedes
any and all other agreements, either oral or in writing, between the parties
hereto with respect to the employment of Employee by Employer and contains all
of the covenants and Agreements between the parties with respect to the
employment of Employee by Employer. Each party to this Agreement acknowledges
that no representations, inducements, promises or agreements, orally or
otherwise, have been made by any party, or anyone acting on behalf of any party,
which are not embodied herein, and that no other agreement, statement or promise
not contained in this Agreement will be effective only if it is in writing
signed by the party to be charged.
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7.7 TITLES AND HEADINGS. Titles and headings to sections of
this Agreement are for the purpose of reference only and shall in no way limit,
define or otherwise affect the interpretation or construction of such
provisions.
7.8 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
"EMPLOYER"
NEW CAPITAL IWORKS, INC.,
a Delaware corporation
By: /s/ Xxxxx XxXxxx
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Xxxxx XxXxxx,
Chairman and CEO
"EMPLOYEE"
/s/ Xxxxxxx Xxxx
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Xxxxxxx Xxxx
Director of Business Development
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