Revised Employment Agreement for A. Scott Dockter

 

 

THIS EMPLOYMENT AGREEMENT (the "Agreement") made effective on the    second    day of   January  , 2008 (the "Effective Date").

a corporation incorporated pursuant to the laws of Delaware

(hereinafter called the "Company")

-and-

an individual residing in the State of California

(hereinafter called the "Executive")

WHEREAS the Executive has been employed by the Company in the position of Chief Executive Officer and President pursuant to an Employment Agreement dated the 1st day of February, 2006 (the "Prior Agreement");

AND WHEREAS the Executive and the Company wish to amend the terms by which the Executive is employed by the Company to provide for, among other things, revised employment terms including additional base salary for the Executive, and, in connection therewith, the Executive and the Company have agreed to terminate the Prior Agreement and replace same with the terms herein contained;

NOW THEREFORE in consideration of the mutual covenants herein contained, and for other good and valuable consideration (including, without limitation, revised employment terms including additional base salary for the Executive), the parties hereto agree as follows:

1.           The Executive's employment shall commence on the Effective Date and, subject to termination by either party in accordance with the provisions of this Agreement, shall conclude on the 31st day of January, 2009 (the "Initial Term"). Notwithstanding the foregoing, this Agreement shall automatically renew for successive one (1) year terms (each, a "Successive Term") unless the Company provides no less than sixty (60) days written notice (a "Non-Renewal Notice") to the Executive notifying the Executive that the Agreement shall conclude upon the expiration of the Initial Term or Successive Term, as the case may be, and not automatically renew.

 

 

2.           The Executive shall serve the Company in the capacity of Chief Operating Officer and shall perform such duties and exercise such powers pertaining to the management and operation of the Company as may be determined from time to time by the board of directors and Chief Executive Officer of the Company, consistent with the description set forth in Schedule A attached hereto. The Executive shall perform those duties that may reasonably be assigned to him, diligently and faithfully to the best of ·his abilities. The Executive shall devote such amount of working time and attention to the business affairs of the Company as is required (as determined by the Company, acting in good faith) to perform the functions consistent with the office of Chief Operating Officer. The Executive further acknowledges that he is bound to follow the policies and procedures established by the Company, from time to time, including any code of business conduct adopted by the Company (including any future revisions of such policy or procedure and code of conduct). In carrying out his duties and responsibilities as Chief Operating Officer of the Company, the Executive shall comply with all lawful instructions as may be given from time to time by the Company.

3.           The Executive shall be entitled to salary and bonuses, as follows:

(a)           Salary. The Executive shall receive a base salary in the amount of USD$225,000 per annum, payable in accordance with the Company's normal payroll cycle, which base salary shall be reviewed at least annually by the board of directors of the Company. The board of directors shall have sole discretion and authority to increase the Executive's base salary, although, at a minimum, the Executive shall be entitled to an annual base salary adjustment based on the annual change in the United States Consumer Price Index.

(b)           Bonus. In addition to the Executive's base salary, the Executive shall be eligible to participate in any discretionary employee bonus plan or other plan, which is implemented by the Company in its sole and unfettered discretion, at a level commensurate with his position.

(c)           Stock Option Plan. Upon establishment of a Company stock option plan, the Executive will participate, according to the terms and conditions thereof, to the same degree as other Company employees of like grade and status.

4.           The Executive shall be entitled to participate in all of the Company's benefit plans generally available to its senior level employees from time to time. The Executive's rights under these benefit plans shall be determined entirely by the terms and conditions of the plans and the Executive shall have no independent rights as against the Company in connection with the said benefits.

 

5.           The Company shall provide the Executive with a company-owned vehicle for use in connection with services provided hereunder.

6.           During his employment hereunder, the Executive shall be entitled to four (4) weeks paid vacation per calendar year, to be scheduled at such times as are acceptable to the board of directors of the Company having regard to the business requirements of the Company

 

7.           The Executive shall be reimbursed at cost for all reasonable travel, cell phone and other out-of-pocket expenses, which the Executive incurs in connection with carrying out his duties hereunder, in accordance with and subject to the terms of Company's expense policy, as amended from time to time. For all such expenses the Executive shall furnish the Company with appropriate receipts.

8.            For Cause. The Company may terminate the employment of the Executive for cause, without notice or any payment in lieu thereof. "Cause" shall mean just cause at common law.

9.           Without Cause. The Company may terminate the Executive's employment at any time without just cause provided, however, that in the event of such termination without cause, the Company shall provide the Executive with the following payments and benefits, in lieu of notice:

 

The lump sum payments referred to above shall be paid within thirty (30) calendar days of the termination of the Executive's employment.

It is acknowledged by the Executive that delivery of a Non-Renewal Notice shall not constitute termination without cause pursuant to this section 9 and shall not entitle the Executive to any termination payment, other than payment of all outstanding salary and bonuses earned by the Executive under section 3 hereof to the date of expiration of the Agreement.

The Executive acknowledges and agrees that payment by the Company as provided for in Section 8 shall be in full and final settlement of any and all claims, demands, actions and suite whatsoever which the Executive has or may have against the Company, its affiliates and any of their directors, officers, employee and their successors and assigns. The Executive further agrees, that if required by the Company, he will sign a release in favour of the Company.

 

10.           Resignation by Executive. The Executive may terminate his employment hereunder at any time, by giving to the Company two (2) months written notice of his intention to resign. The Company may waive all or a part of such notice provided, however, that the Executive shall be paid the amount of any salary, bonus and benefits that would have been earned by him, had he continued to work until the expiry of such two (2) months notice of resignation.

11.           Termination upon Death or Disability. The employment of the Executive and this Agreement shall automatically terminate without liability to the Company beyond amounts due and owing through the date of the termination, provided that (i) if death or disability occurs in the course of the Executive carrying out his duties as Chief Operating Officer, such occurrence shall be deemed a termination without cause and the Executive shall have the benefits contemplated under Section 8 hereof, and (ii) nothing hereunder shall disentitle the Executive or the Executive's estate or beneficiaries to any entitlements that would properly arise as a result of the death or disability of the Executive under the terms of any applicable benefits plan, upon the happening of any of the following:

12.           Termination upon Change of Control. In the event the Company experiences a change in control through the purchase of over fifty percent (50%) of the Company's issued and outstanding shares by a third party, or corporate reorganization having the same effect, and notice of termination is given by the Company within 6 months thereafter, then the lump sum payment stipulated in 9(b) above shall be increased to 18 months, and stock options with vesting provisions will vest immediately.

13.            The Executive acknowledges and agrees that he will not, during his employment hereunder and following the termination of such employment, whether voluntary or involuntary, directly or indirectly disclose to any person or in any way make use of (other than for the benefit of the Company), any confidential information concerning the business and affairs of the Company. Nothing in this section shall preclude the Executive from disclosing such information if such disclosure is required by law or a court of competent jurisdiction.

 

14.            Amendment. If both parties agree, this agreement may be amended in whole or in part, as long as any such amendments are in writing and signed by the parties hereto.

15.           Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, and the federal laws applicable therein.

16.            Successors and Assigns. This Agreement shall be binding on and enure to the benefit of the successors and assigns of the Company.

17.            Notices. Any notice or other communication required or permitted to be given hereunder shall be in writing and either delivered by hand, mailed by prepaid registered mail or sent by facsimile or other electronic communication. At any time other than during a general discontinuance of postal service due to strike, lock-out or otherwise, a notice so mailed shall be deemed to have been received three business days after the postmarked date thereof or, if delivered by hand, shall be deemed to have been received at the time it is delivered or, if delivered by facsimile or other electronic communication, shall be deemed to have been received on the next business day after it is sent. If there is a general discontinuance of postal service due to strike, lock-out or otherwise, a notice sent by prepaid registered mail shall be deemed to have been received three business days after the resumption of postal service. Notice shall be addressed as follows:

(a)    If to the Company:

3108 Ponte Morino Dr.

Suite 210

Cameron Park, CA 95682

Attention: Chief Executive Officer

18.            Withholdings. All taxable amounts set forth in this Agreement are subject to applicable withholding or source deductions.

19.           Entire Agreement. This Agreement constitutes the entire agreement and understanding of the parties hereto, with respect to the subject matter hereof, and supersedes all prior written or verbal agreements and understandings between the Company and the Executive relating to such subject matter.

 

IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the date first above written.

 

 

 

 

 

The Chief Operating Officer shall have, subject always to the general or specific instructions and directions of the Chief Executive Officer, full power and authority to oversee the operations of the Company (except only the matters and duties as by law must be transacted or performed by the Board of Directors or by the shareholders of the Company in general meeting), and to perform such duties and exercise such powers generally performed or exercised by chief operating officers, as may be assigned to him, from time to time, by the Chief Executive Officer or the Board of Directors of the Company, as the case may be.

The Chief Operating Officer shall provide timely reports to the Chief Executive Officer, on the general affairs of the Company, including changes in strategy, changes in material contracts, emergence of sensitive customer or regulatory issues and a monthly written report to the Chief Executive Officer with financial results and highlights and a commentary on operations.

The Chief Operating Officer shall conform to all lawful instructions and directions given to him by the Chief Executive Officer from time to time, and obey and carry out the policies, practices and procedures of the Company, as they exist from time to time.