EMPLOYMENT AGREEMENT
EMPLOYMENT
AGREEMENT, effective as of November 6th
___,
2007 (this “Agreement”),
between Xxxxx Xxxxx, an individual residing at _C/O Content Partners 00000
Xxxxxxxx Xxxx. Xxxxx 000, Xxx Xxxxxxx, XX 90024_______________________________
(“CM”), and North Coast Partners, Inc., of 000 Xxxxx Xxxxxx, Xxxxx 0X, Xxxxxx,
Xxxxxxxx 00000, a Delaware corporation (the “Company”).
W
I T N E S S E T H :
WHEREAS,
the Company and the Board of Directors of the Company desire to memorialize
the
employment of CM on a full-time basis as its Chief Executive Officer and
the
Executive desires to accept such employment subject to the terms and conditions
set forth in this Agreement.
NOW,
THEREFORE, in consideration of the mutual agreements and covenants set forth
herein, the parties hereto agree as follows:
ARTICLE
I
POSITION;
DUTIES; TERM
1.1 Position.
The
Company hereby employs CM as the Chief Executive Officer of the Company,
which
employment the Executive hereby accepts, all in the capacity and on the terms
and conditions hereinafter set forth.
1.2 Duties.
(a)
During the Term (as defined below), the Executive shall be a full-time employee
of the Company, all under and subject to the direction of the Board of Directors
of the Company (the “Board”).
(c) In
his
capacity as Chief Executive Officer, CM shall be the senior officer of the
Company with principal responsibility for the operations of the Company and
shall perform such duties for the Company as are consistent with the foregoing,
including without limitation, conducting market research and assessing
competitive environment to identify business opportunities, developing and
expanding clientele base for Company’s offering of technologies, products and
services, preparing and obtaining approval from the Board; preparing the
Company’s annual budget and plan, reviewing current market growth, distribution
and sales strategies, proposing and developing revenue models, growth strategies
and plans of action, preparing and managing growth forecast and presenting
findings to Board.
(d)
The
services to be performed by CM shall be commensurate with the position of
CM as
the Chief Executive Officer of the Company. In this connection, during the
Term
(i) CM shall not render services to or for any other person, firm, corporation
or business in this capacity and (ii) shall have no interest directly or
indirectly in any other person, firm, corporation or business whose business
competitive with the business of the Company; provided,
however,
CM may
own, directly or indirectly, solely as an investment, securities of any entity
which are traded on any national securities exchange or which are admitted
to
quotation on The NASDAQ Stock Market Inc. if CM (a) is not a controlling
person
of, or a member of a group which controls, such entity and (b) does not,
directly or indirectly, own one percent or more of any class of securities
of
such entity. Notwithstanding the foregoing, so long as it does not interfere
with his full time employment hereunder, CM may attend to outside investments
and serve as a director, trustee or officer of or otherwise participate in
companies, charitable and civic organizations and serve as director of
corporations whose business is unrelated to the business of the Company and
continue to pursue his other business interests.
1.3 Term.
The
term of employment shall commence as of the date set forth above and shall
continue until this Agreement is terminated in accordance with the terms
hereof
(the “Term”).
Notwithstanding anything contained herein to the contrary, CM can terminate
his
employment hereunder at any time hereafter upon sending written notice of
termination to the Company at least sixty (60) days prior to the
termination.
ARTICLE
II
COMPENSATION
2.1 Compensation.
The
Company hereby grants CM Six Hundred Thousand (600,000) common shares in
the
capital of the Company which are restricted securities pursuant to Rule 144
of
the Rules and Regulations promulgated under the Securities Act of 1933 as
amended as his compensation for acting as Chief Executive Officer of the
Company
(“Company Shares”). Two weeks after completion of any future financing
undertaken by the Company for $3 to $5 million should the Company choose
to
pursue financing, CM shall receive an additional compensation in the form
of
annual salary of $240,000 payable in equal monthly installments of $20,000
per
month, or in such other manner as the parties shall mutually agree, subject
to
withholding for applicable taxes. The annual salary shall be subject to an
annual increase at the discretion of the Board.
ARTICLE
III
BENEFITS
3.1 Business
Expenses The
Company, upon presentation by CM of appropriate documentation, shall reimburse
CM for all reasonable and necessary business expenses incurred by CM in
connection with the performance of his duties under this Agreement provided
that
no single expense amount is in excess of $3,000 a month supported by appropriate
documentation shall require a prior approval from the Company. Such
reimbursement shall be paid to CM within five (5) business days
thereafter.
3.2 Additional
Benefits.
CM shall
be entitled to participate in any pension or profit sharing plans, group
health,
accident or life insurance plans, group medical and hospitalization plan,
and
other similar benefits as may be available to the Executives of the Company.
CM
shall assist the Company in adopting the proper plans for the
Company.
2
ARTICLE
IV
TERMINATION
4.1
Termination
without Cause.
CM's
employment hereunder may be terminated by the Company without Cause at any
time.
If the Company terminates CM without cause, the Company shall pay CM the
compensation due to CM through the date of termination in the form of cash,
and
cash equal to 3 month compensation, and Company Shares which shall be pro-rated
at a rate of 25,000 shares per month.
4.2
Termination
with Cause.
CM's
employment hereunder may be terminated by the Company for Cause (hereafter
defined) at any time upon notice from the Company to CM. For purposes hereof,
“Cause”
shall
mean any one of the following: (i) willful and continuing disregard of his
job
responsibilities or material breach by CM of this Agreement, which continues
for
10 days after delivery to CM of notice thereof or (ii) fraud, embezzlement,
conviction of a felony or serious crime, violation of ethics code or other
serious misconduct. If CM’s employment is terminated by the Company for Cause or
by CM for any reason, including without limitation, CMs death or disability,
the
Company shall pay CM or his heirs or personal representatives the compensation
accrued through the date of termination.
ARTICLE
V
REPRESENTATION;
NON-COMPETITION; CONFIDENTIALITY
5.1 Representation
of CM.
CM
represents that CM’s execution of this Agreement and the performance of his
duties required hereunder will neither be a breach of any other employment
or
other agreement nor a breach of any non-competition or similar
agreement.
5.2 Non-Competition.
(a) CM
agrees that during the Term and for the period of one (1) year thereafter,
he
will not engage, directly or directly, either as principal, agent, consultant,
proprietor, creditor, stockholder, director, officer or employee, or participate
in the ownership, management, operation or control of any business which
directly or indirectly competes with the business of the Company. CM
acknowledges and agrees that the current market for the Company's business
extends throughout the world and that it is therefore reasonable to prohibit
CM
from competing with the Company anywhere in such territory. This Section
shall
not apply to CM’s ownership of less than five percent (5%) of the capital stock
of a company having a class of capital stock which is traded on any national
stock exchange or on the over-the-counter market.
(b) During
the Term and for the period of one (1) year thereafter, CM agrees that he
will
not, directly or indirectly, (i) solicit, divert or recruit or encourage
any of
the employees of the Company, or any person who was an employee of the Company
during the Term, to leave the employ of the Company or terminate or alter
their
contractual relationship in a way that is adverse to the Company's interests,
(ii) solicit or divert business from the Company, or assist any person or
entity
in doing so or attempting to do so or (iii) cause or seek to cause any person
or
entity to refrain from dealing or doing business with the Company or assist
any
person or entity in doing so or attempting to do so.
3
5.3 Confidential
Information.
(a) CM
agrees that he shall hold in strict confidence and shall not at any time
during
or after his employment with the Company, directly or indirectly, (i) reveal,
report, publicize, disclose, or transfer any Confidential Information (as
described below) or any part thereof to any person or entity, (ii) use any
of
the Confidential Information or any part thereof for any purpose other than
in
the course of his duties on behalf of the Company, or (iii) assist any person
or
entity other than the Company to secure any benefit from the Confidential
Information or any part thereof. All Confidential Information (regardless
of the
medium retained) and all abstracts, summaries or writings based upon or
reflecting any Confidential Information in CM's possession shall be delivered
by
CM to the Company upon request therefor by the Company or automatically upon
the
expiration of the Term or termination of this Agreement.
(b) For
purposes of this Agreement, "Confidential
Information"
shall
mean any information relating to the business, operations, affairs, assets
or
condition (financial or otherwise) of the Company which is not generally
known
by non-company personnel, or is proprietary or in any way constitutes a trade
secret (regardless of the medium in which information is maintained) which
CM
develops or which CM obtains knowledge of or access to through or as a result
of
CM’s relationship with the Company. Confidential Information specifically
includes, without limitation, business and marketing plans, financings, cost
and
pricing information, supplier information, all source code, system and user
documentation, and other technical documentation pertaining to the hardware
and
software programs of the Company, including any proposed design and
specifications for future products and products in development, and all other
technical and business information considered confidential by the Company.
Confidential Information shall not include any information that is generally
publicly available or otherwise in the public domain other than as a result
of a
breach by CM of his obligations hereunder. For purposes of this Agreement,
information shall not be deemed Confidential Information if (i) such information
is available from public sources, (ii) such information is received from
a third
party not under an obligation to keep such information confidential, or (iii)
CM
can conclusively demonstrate that such information had been independently
developed by CM.
5.4 Remedies. CM
agrees
and acknowledges that the foregoing restrictions and the duration and the
territorial scope thereof as set forth in this Sections 5.2 and 5.3 are under
all of the circumstances reasonable and necessary for the protection of the
Company and its business. In the event that CM shall breach any of the
provisions of Sections 5.2 or 5.3, in addition to and without limiting or
waiving any other remedies available to the Company, at law or in equity,
the
Company shall be entitled to immediate injunctive relief in any court, domestic
or foreign, having the capacity to grant such relief, to restrain any such
breach or threatened breach and to enforce the provision of this Agreement.
4
ARTICLE
VI
MISCELLANEOUS
6.1 Entire
Agreement.
This
Agreement constitutes the entire understanding between the Company and CM
with
respect to the subject matter hereof and supersedes any and all previous
agreements or understandings between CM and the Company concerning the subject
matter hereof, all of which are merged herein.
6.2 Mutual
Indemnity.
CM and
the Company agree to indemnify and hold harmless each other, (and in the
case of
the Company, its directors, officers, representatives, consultants, advisors,
successors and assigns), against any loss, liability, claim, damage and expense
whatsoever (including but not limited to any and all expenses reasonably
incurred in preparation of litigation, claim and legal fees and expenses)
arising out of or based upon any false representation or warranty or breach
or
failure by the other party to comply with any agreement made
herein.
6.3 Successors.
This
Agreement shall be binding upon and inure to the benefit of CM and his heirs
and
personal representatives, and the Company and its successors and
assigns.
6.4 Notices.
All
notices and other communications required or permitted hereunder shall be
delivered personally, sent via facsimile, certified or registered mail, return
receipt requested, or next day express mail or overnight, nationally recognized
courier, postage prepaid with proof of receipt, to the address or telephone
number (in the case of facsimile) set forth above. Such addresses and/or
telephone numbers may be changed by notice given in the manner provided herein.
Any such notice shall be deemed given (i) when delivered if delivered
personally, (ii) the day after deposit with the express or courier service
when
sent by next day express mail or courier, (iii) five (5) days after deposit
with
the postal service when sent by certified or registered mail, or (iv) when
sent
over a facsimile system with answer back response set forth on the sender's
copy
of the document.
6.5 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of Delaware, without regard to choice of law principles.
6.6 Amendment
and Modification.
This
Agreement may be amended, modified or supplemented only by written agreement
executed by the Company and CM.
6.7 Headings.
The
section headings herein are inserted for the convenience of the parties only
and
are not to be construed as part of the terms of this Agreement or to be taken
into account in the construction or interpretation of this
Agreement.
6.8 Counterparts.
This
Agreement may be executed in counterparts and by facsimile, each of which
shall
be deemed to be an original but both of which together will constitute one
and
the same instrument.
5
IN
WITNESS WHEREOF, the parties have entered into this Agreement as of the day
and
year first above written.
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NORTH
COAST PARTNERS, INC.
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By:
/s/ Xxxxxx
Xxxxxxxxx
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Name:
Xxxxxx Xxxxxxxxx
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Title:
Director
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/s/
Xxxxxxxxx X.
Xxxxxxx
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/s/
Xxxxx
Xxxxx
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In
the presence of:
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XXXXX
XXXXX
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Witness:
Xxxxxxxxx X. Xxxxxxx
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