EXHIBIT 10.4
EMPLOYMENT AGREEMENT
--------------------
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made effective
as of August 15, 2002, by and between Case Financial, Inc., a California
corporation (the "Company"), and Xxxxx Xxxxxxx ("Employee").
In consideration of the mutual promises herein contained and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Employee and the Company agree as follows:
1. TERM. Subject to the terms and conditions herein contained,
the Company hereby employs Employee, and Employee hereby accepts such
employment, for a period of twenty-four (24) months beginning as of the
effective date of this Agreement.
2. POSITION. During Employee's employment hereunder, Employee
will hold the position of Vice President/Director of Underwriting and/or such
other management position(s) as the Board of Directors may determine in its sole
discretion. As Director of Underwriting Employee's duties shall include, but
shall not be limited to, those set forth on EXHIBIT A attached hereto, which may
be amended from time to time upon the mutual written agreement of the Company
and Employee.
3. COMPENSATION.
(a) BASE COMPENSATION. As consideration for all
services which Employee may render to the Company or its subsidiaries in any
capacity during the term hereof, Employee will receive, and the Company hereby
agrees to pay Employee, base compensation ("Base Compensation") at the annual
rate of Ninety Thousand ($90,000) per year commencing on the date of this
Agreement. Upon each yearly anniversary of the date of this Agreement,
Employee's Base Compensation automatically shall be increased by the "Cost of
Living" based on the accepted "Cost of Living Index."
(b) SIGNING BONUS. Upon the execution of this
Agreement, Employee shall be entitled to receive from the Company One Hundred
Thousand (100,000) shares of the Company's common stock, $.0001 par value per
share ("Common Stock").
(c) ANNUAL BONUS. Employee shall also be entitled to
receive from the Company with respect to each fiscal year during the term of
this Agreement, such bonus ("Bonus") as the Company's Board of Directors or the
Compensation Committee of such Board shall determine; provided, however, that
nothing herein shall be deemed to require that a bonus be paid with respect to
any given fiscal year and that, in determining the level of bonus, if any,
payable for a given fiscal year, the Board of Compensation Committee may
consider the Automatic Annual Increase as part of any Bonus. The bonus shall not
exceed Thirty Thousand Dollars ($30,000) per each fiscal year.
Employee's Base Compensation, as increased by any Automatic
Annual Increase, Commission and Bonus are hereinafter collectively referred to
as "Compensation."
4. BENEFITS; EXPENSES; AND VACATION. In addition to the
Compensation, Employee shall be entitled to receive the following additional
benefits during the term of this Agreement only to the extent the benefits are
offered by the Company and the below benefits may be modified or revoked at any
time by the Company if an insurer either modifies or revokes any of the below
noted benefits:
(a) Company-paid health, life, disability and/or
dental insurance (all on such terms and with such insurers as the Company shall
offer to its other executive officers); and
(b) Paid vacation of 3 weeks in the first year of the
Contract and 4 weeks in the second year of the Contract.
(c) all such other fringe benefits and perquisites,
if any, as the Company shall from time to time make generally available to
employees of the Company.
5. FULL-TIME EMPLOYMENT. During the term hereof, Employee will
devote his full time and best efforts to the business of the Company.
6. NON-COMPETITION.
(a) Throughout the term of this Agreement and for
twelve (12) months following the termination of this Agreement, Employee agrees
not to compete with the business of the Company anywhere in the United States
where the Company currently or expects to conduct business. The phrase "compete
with the business of" shall be deemed to include engaging or being interested,
directly or indirectly, as an owner, employee, general partner, consultant,
through stock ownership, investment of capital, or rendering of services, either
alone or in association with others, in the ownership, operation, management or
supervision of any type of business or enterprise competitive with the Company.
The foregoing shall not prevent Employee from owning up to 5% of the outstanding
securities of a publicly held corporation which may compete with the business of
the Company.
(b) TRADE SECRETS AND CONFIDENTIAL INFORMATION.
(1) TRADE SECRETS. Employee recognizes and acknowledges that by virtue of
Employee's employment with the Company, Employee will have access to
certain trade secrets and confidential information of the Company and
that such information constitutes valuable, special and unique property
of the Company, and derives economic value because it is not generally
known to the public or to others who could benefit from its disclosure
or use ("Trade Secrets and Confidential Information"). Trade Secrets
and Confidential Information includes, but is not limited to, the
following: (i) customer information, including, without limitation,
customer lists and other information concerning particular needs,
problems, likes or dislikes of the Company's customers; (ii) the
identities of the Company's customers; (iii) price information, such as
price lists, the contents of bids, and other information concerning
-2-
costs or profits; (iv) technical information, such as formulae,
know-how, computer programs and software developed specifically for the
Company, secret processes or machines, inventions and research
projects, documentation, or other methods or processes; (v) business
information relating to costs, profits, sales, markets, suppliers,
plans for further development, market studies, methods of doing
business or research projects that relate to the Company's business;
(vi) personnel or a compilation of data concerning the Company `s
employees and independent contractors; and (vii) any other information
valuable because of its private or confidential nature. Trade Secrets
and Confidential Information may be oral or written and may be
information which Employee originates or which otherwise comes into
Employee's possession or knowledge. All such Trade Secrets and
Confidential Information constitute valuable, special and unique
property of the Company and derive economic value because such Trade
Secrets and Confidential Information are not generally known to the
public or to others who could benefit from their disclosure or use.
(2) CONFIDENTIAL INFORMATION. Employee agrees that Employee shall treat all
Trade Secrets and Confidential Information of the Company as
confidential and shall not divulge or disclose any of same gained in
connection with Employee's employment by the Company to any other
person, firm, corporation or entity ("Person"), except upon the written
request or instruction of the Company or in the normal course of
Employee's duties as a Company Employee or as otherwise required by law
or legal process.
(3) RETURN OF CONFIDENTIAL INFORMATION. Employee covenants and acknowledges
that upon separation from employment with the Company, Employee shall
immediately surrender to the Company all of the Company's Trade Secrets
and Confidential Information and any and all such documents, materials
or other tangible items pertaining to these Trade Secrets and
Confidential Information that Employee may possess and that such Trade
Secrets and Confidential Information shall be and remain the sole
property of the Company. Employee agrees that if Employee is in doubt
as to whether any information, material, or document is a Trade Secret
or is Confidential Information, Employee will contact the Board of
Directors of the Company before disclosing or using same for any
purpose other than in furtherance of Employee's duties as an employee
of the Company. The covenants of this Section shall continue for as
long after the termination of this Employment Agreement as any Trade
Secret or Confidential Information continues to constitute a trade
secret under applicable law.
(c) INVENTIONS AND CREATIONS.
(1) INVENTIONS. Employee agrees that the Company shall be entitled to all
rights to all inventions, discoveries, developments, improvements, mask
works, and other contributions relating in any way to the business or
research of, or products or services sold by, the Company (herein
called collectively "Inventions") to the extent protectable by law,
that Employee conceives, makes, develops or acquires, either
individually or jointly, during Employee's employment with the Company
and which relate in any manner to Employee's work, the Company's
-3-
research, business or products or fields to which the business of the
Company may reasonably extend. Employee further agrees to assign and
transfer to the Company Employee's entire right, title and interest in
and to the Inventions and not to disclose such Inventions to others
without the prior written consent of the Company, except as required by
Employee's employment by the Company or by law.
(2) DISCLOSURE AND PROTECTION OF INVENTIONS. Employee further agrees to
promptly and fully disclose the Inventions to the Company, in writing
if requested by the Company, and to execute and deliver any and all
lawful applications assignments and other documents which the Company
requests for protecting the Inventions in the United States or any
other country. The Company shall have the full and sole power to
prosecute such applications and to take all other action concerning the
Inventions, and Employee agrees to cooperate fully, at the expense of
the Company, in preparing and prosecuting all such applications and in
any legal actions and proceedings concerning the Inventions in the
United States and in foreign countries, including assigning priority
rights and executing any and all applications, including renewals,
extensions and divisions thereof.
(3) ASSIGNMENT OF CREATIONS. Employee agrees to and does hereby assign,
convey and transfer to the Company any and all manuscripts, computer
programs, writings, pictorial materials and other creations (herein
called collectively "Creations"), created by Employee, either
individually or jointly, in the course of Employee's employment by the
Company and which relate to the Company's business, research, products
or services. The Company shall have the full right to seek and procure
copyrights on the Creations, and Employee shall cooperate fully, at the
expense of the Company, in securing copyrights and in any legal actions
and proceedings concerning the Creations in the United States and in
foreign countries, including executing any and all applications,
including renewals thereof. Employee further agrees not to disclose
such Creations to others without the prior written consent of the
Company, except as required by Employee's employment by the Company or
by law.
(4) NO ADDITIONAL COMPENSATION. Employee shall not be entitled to any
additional compensation for any services the Company shall require to
be rendered by Employee under this Section.
(d) NON-SOLICITATION. Employee agrees and
acknowledges that Employee's services hereunder are of a special, unique,
extraordinary character, that Employee's employment with the Company places
Employee in a position of confidence and trust and that Employee's services
hereunder necessarily will require the disclosure to Employee of Confidential
Information of the Company. Employee consequently agrees that it is reasonable
and necessary for the protection of the goodwill and business of the Company
that Employee make the covenants contained herein and that Company is relying
upon and is induced by the agreements made by Employee in this paragraph.
Accordingly, Employee agrees that during the term of this Agreement and for a
twelve (12) month period thereafter, Employee shall not, except on behalf of the
Company, directly or indirectly, and regardless of the reason for the cessation
of Employee's employment (i) attempt in any manner to persuade any third party
to cease to do business, or to reduce the amount of business which any such
party customarily has done or contemplates doing, with the Company, whether or
-4-
not the relationship between the Company and such third party was originally
established in whole or in part through Employee's efforts; or (ii) on
Employee's own behalf or otherwise, hire, solicit, seek to hire, or offer
employment to any person who is, during any such time period, an employee of or
independent contractor with the Company, or in any other manner attempt,
directly or indirectly, to influence, induce or encourage any such person to
leave the employ of, or terminate or diminish such person's business
relationship with, the Company. As used in this paragraph, the verb 'employ'
shall include its variations, for example, retain or engage; and the "Company"
shall include Case Financial, Inc. and each of its direct or indirect
subsidiaries.
The covenants of Employee set forth in this Section 6 are made in consideration
of the payments made to Employee pursuant to this Agreement, the receipt,
adequacy and sufficiency of which are acknowledged by Employee, and such
covenants have been made by Employee to induce the Company to enter into this
Agreement.
7. STOCK OPTIONS. In consideration of his services hereunder,
Employee shall be entitled to receive from the Company and the Company shall
grant to Employee concurrently with the execution hereof, an option to purchase
up to 150,000 shares of Common Stock at the price of the stock on the close of
business on May 24, 2002 which was the day the transaction with Asia Web
Holdings Inc. closed. The options shall be distributed equally over a period of
three (3) years (i.e. 4,166 options per month over the 3 years) and shall start
to vest as of the date of this Contract.
8. OWNERSHIP OF COPYRIGHT; WORK PRODUCT. Employee, in his time
and scope of employment under this Agreement, may create or draft documents
including, but not limited to forms, letters, correspondence, charts, graphs,
spreadsheets, illustrated pictures, digital pictures, photographic pictures,
video presentations and musical compositions related to the business of the
Company. Employee hereby acknowledges that any such documents produced in the
course and scope of the employment relationship are the work product of the
Company and all copyrights, patents, trademarks and all other rights to such
works are owned by the Company. Upon the conclusion of Employee's employment
with the Company, such documents will remain the intellectual property of the
Company and are to remain at the Company's headquarters. Employee agrees to
execute any and all documents reasonably requested by the Company to effect the
provisions of this Section 8.
9. DRUG TESTING. The Company may, at its discretion, require
Employee to submit to drug testing at an appropriate medical facility if Company
management has a reasonable suspicion of Employee's continued use of narcotics
and/or alcohol (collectively "drug use"). If the drug test indicates drug use,
Employee shall be entitled to a second test within seven (7) days of the results
and if the second test indicates use in addition to the first test, or Xxxxxxx
refuses to submit to drug tests, the Company may terminate Xxxxxxx immediately.
-5-
10. TERMINATION.
(a) TERMINATION OF AGREEMENT. Notwithstanding any
other provision of this Agreement, either party shall have the right to
terminate this Agreement at any time, for any reason, upon 30 days written
notice to the other party.
(b) EFFECT OF TERMINATION.
(i) TERMINATION WITHOUT CAUSE. In the event
the Company terminates Employee during the term of this Agreement without
"cause" (as defined below), the Company shall (i) continue to pay Employee his
Base Compensation then in effect for the remainder of the term of the Agreement,
and (ii) continue to provide Employee with the stock options as outlined in
Section 7 of this Agreement. As a condition to the receipt of the Base
Compensation and benefits as set forth in Section 4, Employee shall make
diligent efforts to mitigate his damages by seeking other employment and shall
advise the Company of such efforts made. To the extent Employee receives
compensation or benefits from such other employment or other collateral source,
the payment of the Base Compensation and the benefits pursuant to Section 4
shall be correspondingly reduced.
(ii) TERMINATION FOR CAUSE. In the event of
termination by the Company for cause, or in the event Employee voluntarily
terminates this Agreement, no further payments of any Compensation shall be made
to Employee, except for payment of the Base Compensation then in effect during
the 30-day notice period and except for those options that have already vested.
Employee shall not be entitled to any oprtions that have not vested as of the
time of termination under this Paragraph 10(b).
(iii) CAUSE. For the purposes hereof,
"cause" shall be limited to the following: (i) conviction of a felony;
(ii) commission of any intentional and material act involving fraud or
misappropriation of funds, properties or assets of the Company; (iii) chronic
alcoholism, drug addiction or substance abuse; (iv) failing, or refusing to
submit to, a drug test in accordance with Section 9 of this Agreement, (v) gross
negligence in the performance of Employee's duties hereunder, (vi) gross
negligence in the performance of Employee's duties hereunder which the Board of
Directors of the Company determines to have a material adverse effect on the
Company; or (vii) any material violation of any written policies of the Company
which, to the extent curable, are not cured within thirty (30) days of
Employee's receipt of notice thereof.
(c) SURRENDER OF BOOKS AND RECORDS. Upon the
termination of this Agreement, for any reason, Employee shall immediately
surrender to the Company all lists, books, records and other documents incident
to the Company's business and all other property belonging to the Company, it
being distinctly understood that all such lists, books, records and other
documents are the property of the Company.
-6-
11. SURVIVAL. Upon the expiration or other termination of this
Agreement, all obligations of the parties shall forthwith terminate, except for
any obligation to pay any fixed sum of money or to grant any Options pursuant to
Section 7 which may have accrued and be due and payable hereunder at the time of
such expiration or other termination and except that the provisions of Section 6
shall continue in full force and effect in accordance with its terms, such
Section containing independent agreements and obligations.
12. INDEMNITY. The Company agrees to defend, indemnify and
hold harmless Employee from any and all claims, actions, lawsuits or other
choses in action brought against Employee by any person/third party in
connection to or related in any manner whatsoever to Employee's duties,
obligations and/or responsibilities arising out Employee's employment with
Company.
13. INCAPACITY. In the event Employee becomes "incapacitated"
(defined as so seriously injured that Employee is physically and/or mentally
unable to complete his/her duties under the term of the Contract) Company shall
agree to pay at least three (3) months of Employee's compensation and benefits
as under the term and conditions of this Contract from the date Employee is
determined to be "incapacitated." Company retains the right at their expense to
have their own physician(s) or other health care provider(s) examine Employee to
determine if Employee is "incapacitated"
14. EQUITABLE REMEDIES. The agreements of the parties
contained in Section 6 and 8 are of a special, unique and extraordinary
character; the obligations contained therein shall therefore be enforceable both
at law and in equity, by injunction and otherwise; and the rights and remedies
of the Company and the Employee hereunder with respect thereto shall be
cumulative and not alternative and shall not be exhausted by any one or more
uses thereof.
12. ENTIRE AGREEMENT; WAIVERS AND AMENDMENTS. This Agreement
sets forth the entire agreement between the parties with respect to the terms
and conditions of Employee's employment and any and all matters related thereto,
and any and all prior agreements with respect to any thereof, whether oral or
written, are superseded hereby. Neither this Agreement nor any term or condition
hereof, including, without limitation, the terms and conditions of this
paragraph, may be waived or modified in whole or in part as against the Company
or Employee, as the case may be, except by written instrument signed by an
authorized officer of the Company or by Employee, as the case may be, expressly
stating that it is intended to operate as a waiver or modification of this
Agreement, and any such written waiver by either party of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach hereof.
-7-
13. NOTICE. Any notice hereunder shall be in writing and shall
be deemed given or delivered two (2) days after it has been mailed by registered
or certified mail, postage prepaid, or one (1) day after being sent by a
recognized national courier service, in each case addressed as follows:
If to Company: Case Financial, Inc.
00000 Xxxxxxx Xxxx., #000
Xxxxxxx Xxxx, XX 00000
If to Employee: Xxxxx Xxxxxxx
00000 Xxxxxx Xxx. #000
Xxx Xxxxxxx, XX 00000
except that either party may from time to time by written notice to the other,
designate another address which shall thereupon become his effective address for
the purposes of this Section.
14. SEVERABILITY. If any term or provision of this Agreement
or the application thereof to any person, property or circumstance shall to any
extent be invalid or unenforceable, the remainder of this Agreement or the
application of such term or provision to persons, property or circumstances
other than those as to which it is invalid or unenforceable, shall not be
affected thereby, and each term and provision of this Agreement shall be valid
and enforced to the fullest extent permitted by law.
15. NO ASSIGNMENT. This Agreement is personal in nature and
the obligations hereunder may not be assigned by the Company or by Employee
without the prior written consent of the other party hereto; provided, however,
that the provisions hereof shall inure to the benefit of, and be binding upon
each successor of the Company, whether by merger, consolidation, transfer of all
or substantially all of its assets, or otherwise.
19. GOVERNING LAW. This Agreement shall be construed and
enforced in accordance with the laws of the State of California.
20. ARBITRATION; VENUE.
(a) Subject to the provisions of Section 13 hereof,
any dispute, controversy or claim arising out of, relating to, or in connection
with, this Agreement or the agreements or transactions contemplated hereby shall
be finally settled by arbitration conducted in accordance with the provisions of
this Section 18. The arbitrator shall be a retired judge or practicing attorney
and the arbitration shall be conducted and the arbitrator chosen in accordance
with the rules of the American Arbitration Association (the "AAA") in effect at
the time of the arbitration, except as they may be modified herein or by mutual
agreement of the parties hereto (the "Parties"). If the Parties are unable to
agree on the location of the arbitration within five (5) business days after the
-8-
date of delivery of the request of arbitration, the Parties agree the
arbitration will be conducted in Los Angeles County, California. Each Party
hereby irrevocably submits to the jurisdiction of the arbitrator in Los Angeles,
California and waives any defense in an arbitration based upon any claim that
such Party is not subject personally to the jurisdiction of such arbitrator,
that such arbitration is brought in an inconvenient forum or that such venue is
improper.
(b) The arbitrator's award shall be in writing and
shall be final and binding on the Parties. The award may include an award of
costs, including reasonable attorneys' fees and disbursements. Judgment upon the
award may be entered by any court having jurisdiction thereof or having
jurisdiction over the Parties or their assets.
(c) Any dispute, controversy or claim arising out of,
relating to, or in connection with, this Agreement or the agreements or
transactions contemplated hereby, as well as any arbitration proceeding under
this Section 20, shall be deemed to be "Confidential Information," subject to
the provisions of Section 6 of this Agreement.
21. ATTORNEYS' FEES. In the event of suit, arbitration or
other proceeding between the parties hereto with respect to this Agreement, the
prevailing party shall, in addition to such other relief as may be awarded, be
entitled to reasonable attorneys' fees, expenses and costs of investigation, all
as actually incurred.
IN WITNESS WHEREOF, the undersigned have executed this
Agreement effective as of the date first set forth above.
CASE FINANCIAL, INC.
By: /S/ XXXX XXXXX
--------------------------------
XXXX XXXXX
Title: Chief Executive Officer
Dated: ____________________
/S/ XXXXX XXXXXXX
--------------------------
XXXXX XXXXXXX
Dated: _____________________
-9-
EXHIBIT A
DESCRIPTION OF DUTIES
As Director of Underwriting Employee's duties shall include but are not
limited to the following: Evaluating and Analyzing lawsuits that are presented
to Employee by the Company for the purpose of evaluating the lawsuits to
determine their overall settlement value and to determine the approximate
value(s) to be advanced to attorneys and/or Plaintiffs; Organize and develop the
Underwriting Department as the Company expands; To monitor outside litigation on
behalf of the Company; To handle all legal matters to the extent they can be
handled inside without the need for outside counsel.
-10-
EXHIBIT B
OPTION AGREEMENT
-11-
