EXHIBIT 10.11
EMPLOYMENT AGREEMENT
AGREEMENT made as of this 20th day of February, 2003 by and
between KNIGHTSBRIDGE FINE WINES, INC., a Nevada corporation, with an address at
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (the "Corporation") and ▇▇▇▇
▇▇▇▇▇▇▇, residing at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇
(▇▇▇▇▇▇▇).
W I T N E S S E T H
WHEREAS, the Corporation wishes to employ ▇▇▇▇▇▇▇ as an
executive employee of the Corporation on a full time basis and ▇▇▇▇▇▇▇ wishes to
accept such employment; and
WHEREAS, the Corporation considers the availability of ▇▇▇▇▇▇▇'▇
services to be important to the successful conduct of the Australian operations
of the Corporation's business and desires to secure for itself the availability
of his services; and
WHEREAS, ▇▇▇▇▇▇▇ desires to become an employee of the
Corporation and serve in such capacities and perform all such duties as the
Board of Directors of the Corporation shall assign.
NOW THEREFORE, in consideration of the premises and mutual
covenants and obligations hereinafter set forth the Corporation and ▇▇▇▇▇▇▇
hereby agree as follows:
1. Employment. The Corporation hereby employs ▇▇▇▇▇▇▇ on a full
time basis as an executive employee of the Corporation and ▇▇▇▇▇▇▇ hereby
accepts such full time employment, on the terms and conditions hereinafter set
forth. The Corporation agrees that, as his initial position hereunder,
contemporaneously herewith, the Board of Directors of the Corporation shall
initially elect ▇▇▇▇▇▇▇ to the office of Chief Marketing Officer of the
Corporation. ▇▇▇▇▇▇▇ shall have such titles and such authority as, in the
opinion of the Board of Directors of the Corporation, is necessary or
appropriate for him to carry out his duties and obligations under this
Agreement.
2. Services. During the term hereof, ▇▇▇▇▇▇▇ shall use his best
efforts and devote all of the necessary business time and attention to the
performance of such responsibilities and duties.
3. Term.
(a) Except as otherwise provided in this Agreement to the
contrary, the terms and conditions of this Agreement, and ▇▇▇▇▇▇▇'▇ employment
hereunder, shall be and remain in effect during the period of employment
("Employment Period") established under this Section 3. The Employment Period
shall be for a term commencing on March 1, 2003 until such time as such
employment is terminated by the Board of Directors of the Corporation. It being
understood and agreed that the employment of ▇▇▇▇▇▇▇ is totally, in all
respects, at the pleasure of the Board of Directors of the Corporation.
(b) Notwithstanding anything herein contained to the
contrary, ▇▇▇▇▇▇▇'▇ employment with the Corporation may be terminated during the
Employment Period, with or without cause.
4. Compensation. In consideration for services rendered by
▇▇▇▇▇▇▇ under this Agreement, the Corporation shall pay to ▇▇▇▇▇▇▇ a base salary
("Base Salary") at an annual rate equal to A$125,000 Dollars (A$125,000) per
annum payable in equal monthly installments or in such other manner as the
parties shall mutually agree.
5. Employee Benefits Plans. Except as otherwise provided in this
Agreement, ▇▇▇▇▇▇▇ shall, during the Employment Period, be treated as an
employee of the Corporation and be entitled to participate in and receive
benefits under any employee benefit plan, fringe benefit plan, retirement or
pension plan, incentive savings plan, stock option and appreciation rights plan,
or any other incentive compensation plan instituted and maintained from time to
time by the Corporation, in accordance with the terms and conditions of such
employee benefit and compensation plans and programs, which may by their terms
exclude certain categories of full time and/or executive employees.
6. Working Facilities and Expenses.
(a) ▇▇▇▇▇▇▇'▇ principal place of employment shall be
initially located in Australia. ▇▇▇▇▇▇▇ shall spend approximately six months per
year in the United States overseeing US marketing operations.
(b) Business and Travel. The Corporation shall reimburse
▇▇▇▇▇▇▇ for his ordinary and necessary business expenses, including without
limitation, travel and entertainment expenses, incurred in connection with the
performance of his duties under this Agreement, upon timely presentation to the
Corporation of an itemized account of such expenses in such form as the
Corporation may reasonably require.
7. Termination. Upon the termination of ▇▇▇▇▇▇▇'▇ employment
with the Corporation, the Corporation shall pay and provide to ▇▇▇▇▇▇▇ (i) his
earned but unpaid Base Salary through the date of termination and (ii) the
benefits, if any, to which he is entitled as a former full time employee under
the Corporation's employee plans and programs and compensation plans and
programs described in Section 5. All compensation and benefits shall cease on
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and as of the date of any such termination. The Corporation and ▇▇▇▇▇▇▇ hereby
stipulate that the payments and benefits provided under this Section 7 are
reasonable under the circumstances for all purposes. Upon termination, ▇▇▇▇▇▇▇
shall be offered to re-purchase his laptop computer and fax machine at market
values.
8. Termination For Cause. The Corporation shall be entitled to
terminate ▇▇▇▇▇▇▇'▇ employment with the Corporation at any time: (a) for cause
which for purposes of this Agreement shall mean a discharge because ▇▇▇▇▇▇▇: (i)
has intentionally engaged in dishonest conduct in connection with his
performance of services for the Corporation or has been convicted of a felony;
(ii) is in any way enjoined or otherwise prohibited from performing any or all
of his duties hereunder as the result of the enforcement or attempted
enforcement of any restrictive agreement entered into by ▇▇▇▇▇▇▇ at any time in
the past, present or future; (iii) has materially breached the terms of this
Agreement and he fails to cure such breach within sixty (60) days following
written notice thereof from the Corporation; or (b) ▇▇▇▇▇▇▇'▇ death or
disability (as used herein "disability" shall mean mental or physical incapacity
which prevents ▇▇▇▇▇▇▇ from actively fulfilling his duties hereunder for a
period of four (4) months in any consecutive twelve (12) month period). All
compensation and benefits shall cease on and as of the date of any such
termination for cause. The Corporation and ▇▇▇▇▇▇▇ hereby stipulate that the
payments and benefits provided under this Section 8 are reasonable under the
circumstances for all purposes.
9. Termination Without Cause. The Board of Directors may
terminate the employment of ▇▇▇▇▇▇▇ at any time on and after the Trigger Date,
with or without cause, in its sole and absolute discretion. All compensation and
benefits shall cease on and as of the date of any such termination. ▇▇▇▇▇▇▇
shall be paid a six month salary severance package if terminated without cause.
9. Non-Competitive Restrictions.
(a) During the Term of this Agreement, ▇▇▇▇▇▇▇ shall not
directly or indirectly in any capacity engage in any business nor render any
services to or for any person, firm or corporation engaged in the Corporation's
business other than the Corporation, except as and to the extent authorized by
the Board of Directors of the Corporation or its successor in interest;
(b) During the Term of this Agreement and for a period of
eighteen (18) months immediately following the termination of this Agreement for
any reason whatsoever (including expiration), ▇▇▇▇▇▇▇ shall not for any reason
whatsoever, directly or indirectly, for himself or on behalf of, or in
conjunction with, any other person, persons, company, partnership, corporation
or business entity, whether profit or not-for-profit:
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(i) Call upon, contact, divert, influence or
solicit or attempt to call upon, contact, divert,
influence or solicit any customer or customers of the
Corporation, any subsidiary of the Corporation and/or
its successor in interest (together, hereinafter
sometimes referred to as the Covenant Entities);
(ii) divulge the names and addresses or any
information concerning any customer of or supplier of
goods and/or services to the Covenant Entities; and/or
(iii) own, manage, operate, control, be
employed by, participate in or be connected in any
manner with the ownership, management, operation or
control of the same, similar, or related line of
business as that now or at any time during the term of
this Agreement carried on by any of the Covenant
Entities.
(c) ▇▇▇▇▇▇▇ represents and warrants to each of the Covenant
Entities that he has substantial experience and abilities in various other
fields of endeavor and that any such restrictions will not have a material
adverse impact on his ability to obtain and maintain gainful employment should
his employment with any Covenant Entity be terminated or otherwise end.
(d) In the event it is determined by a court of competent
jurisdiction that any provision of this Section 9 exceeds the time, geographic
or other limitations permitted by the governing law of this Agreement or any
other applicable law in any jurisdiction, then such provision shall be deemed
limited to the maximum time, geographic or other limitations permitted by
applicable law and the remainder of this Section 9 shall remain valid and in
effect.
(e) This Section shall in no way limit the other remedies
available to the Corporation in accordance with any other Section hereof or any
applicable laws.
10. Confidentiality and Non-Disclosure.
(a) As the result of his duties ▇▇▇▇▇▇▇ will have access to
some or all of the confidential information pertaining to the Covenant Entities
businesses. It is agreed that Confidential Information of the Covenant Entities
includes, but is not limited to:
(i) The ideas, methods, techniques, formats,
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formulae, specifications, procedures, designs,
processes, systems, control, data and software and/or
hardware products which are unique or proprietary to,
or a trade secret of any of the Covenant Entities;
(ii) all customer, pricing, financial and
marketing information pertaining to the businesses of
any of the Covenant Entities;
(iii) all operations, sales, training and
other knowledge or materials utilized in the businesses
of any of the Covenant Entities;
(iv) all other information now in existence or
developed in the future which is similar in nature to
any of the foregoing; and
(v) all information which is marked as
confidential or explained to be confidential or which,
by its nature, is confidential.
(b) ▇▇▇▇▇▇▇ understands that he will necessarily have access
to some or all of the Confidential Information. ▇▇▇▇▇▇▇ recognizes the
importance of protecting the Confidentiality and secrecy of the Confidential
Information and, therefore, agrees to use his best efforts to protect the
Confidential Information from unauthorized disclosure to other persons. ▇▇▇▇▇▇▇
understands that protecting the Confidential Information from unauthorized
disclosure is critically important to the success and competitive advantage of
each of the Covenant Entities and that the unauthorized disclosure of the
Confidential Disclosure would greatly damage the Covenant Entities.
(c) ▇▇▇▇▇▇▇ agrees not to disclose any Confidential
Information to others or use any Confidential Information for his own benefit
without the express written consent of the Board of Directors of the Corporation
or governing body of the Covenant Entity to which such Confidential Information
belongs. ▇▇▇▇▇▇▇ agrees to immediately return all Confidential Information,
including any copies in his possession upon the request of the Board of
Directors of the Corporation or the governing body of the Covenant Entity to
which such Confidential Information belongs.
11. Enforcement of Covenants.
(a) The covenants set forth herein on the part of ▇▇▇▇▇▇▇
shall be construed as an agreement independent of any other provision in this
Agreement and the existence of any claim or cause of action of ▇▇▇▇▇▇▇ against
the Corporation, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by any of the Covenant Entities of the
Covenants contained herein.
(b) Employee acknowledges that irreparable damage will result
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to the Covenant Entities in the event of the breach of any covenant contained
herein and ▇▇▇▇▇▇▇ agrees that in the event of such breach, any one or more of
the Covenant Entities affected by such breach shall be entitled, in addition to
any and all other legal or equitable remedies and damages, to a temporary and/or
permanent injunction to restrain the violation thereof by ▇▇▇▇▇▇▇ and all of the
persons acting for or with ▇▇▇▇▇▇▇.
(c) It is specifically understood and agreed
by ▇▇▇▇▇▇▇ that each of the
Covenant Entities shall have the right to enforce the provisions of this Section
11 as against ▇▇▇▇▇▇▇ as it relates to such any such entity
12. Representations and Warranties; Investigation.
(a) ▇▇▇▇▇▇▇ represents and warrants that he is not now and
will not be on the date of commencement of this Agreement a party to any
agreement, contract or understanding, whether of employment, agency, or
otherwise, which would in any way conflict with, restrict or prohibit ▇▇▇▇▇▇▇
from undertaking and performing his duties in accordance with the terms and
provisions of this Agreement, and that ▇▇▇▇▇▇▇ has the full right and power to
enter into and to perform this Agreement in accordance with its terms and
provisions.
(b) ▇▇▇▇▇▇▇ agrees that before and at any time during his
employment that the Corporation, in its discretion, may investigate ▇▇▇▇▇▇▇'▇
background to confirm that ▇▇▇▇▇▇▇ has not filed for bankruptcy (or similar debt
relief status) and has no prior criminal record. For this purpose, ▇▇▇▇▇▇▇
specifically hereby authorizes the Corporation to obtain such background checks
and other information as may be useful.
13. Successors and Assigns. This Agreement will inure to the
benefit of and be binding upon ▇▇▇▇▇▇▇, his legal representatives, heirs and
successors, and the Corporation, its successors and assigns, including any
successor by a merger or consolidation or statutory receiver or any other person
or firm or corporation to which all or substantially all of the assets and
business of the Corporation may be sold or otherwise transferred.
14. Notices. Any communication to a party required or permitted
under this Agreement including any notice, direction, designation, consent,
instruction, objection or waiver shall be in writing and shall be deemed to be
given at such time as it is delivered personally, or the earlier of (i) five
days after sending or (ii) one day after the first attempted delivery on a
non-holiday weekday in the locality of the noticed party (as indicated on a
return receipt or records of the carrier), if sent, all fees and charges
prepaid, by US Postal Service Express Mail, return receipt requested, or by a
recognized international Package expedited delivery service (e.g. Fedex, DHL and
companies of similar stature) requiring a receipt against delivery, in each case
addressed to such party at the address listed below or at such other address as
one such party may by written notice specify to the other:
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If to ▇▇▇▇▇▇▇:
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇
-With a copy by like notice to-
If to the Corporation: Knightsbridge Fine Wines, Inc.
c/o ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
-With a copy by like notice to-
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇,, Feiner, Yamin, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Additionally, notice may be given by facsimile transmission, but any such notice
shall not be deemed given or effective unless such facsimile transmission is
acknowledged as to receipt in a return facsimile or other writing from the
noticed party and, if so acknowledged, shall be deemed effective as of the date
of such acknowledgment.
15. Limited Recourse. ▇▇▇▇▇▇▇ agrees that he shall look only to
the Corporation for performance of any obligations hereunder and that he shall
have and seek no recourse against any officer, director and/or shareholder of
the Corporation.
16. Severability. A determination that any provision of this
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Agreement is invalid or unenforceable shall not affect the validity or
enforceability of any other provision hereof.
17. Waiver. Failure to insist upon strict compliance with any of
the terms, covenants or conditions hereof shall not be deemed a waiver of such
term, covenant or condition. A waiver of any provision of this Agreement must be
made in writing, designated as a waiver, and signed by the party against whom
its enforcement is sought. Any waiver or relinquishment of any right or power
hereunder at any one or more times shall not be deemed a waiver or
relinquishment of such right or power at any other time or times.
18. Survival. Any provisions in this Agreement that by their
nature encompass obligations extending beyond the termination of this Agreement
shall survive the termination of this Agreement.
19. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York,
without reference to conflicts of law principles.
20. Headings. The headings of Sections in this Agreement are for
convenience of reference only and are not intended to qualify the meaning of any
Section. Any reference to a Section number shall refer to a Section of this
Agreement, unless otherwise stated.
21. Entire Agreement; Modifications. This instrument contains
the entire Agreement of the parties relating to the subject matter hereof, and
supersedes in its entirety any and all prior Agreements, understandings or
representations relating to the subject matter hereof. No modifications of this
Agreement shall be valid unless made in writing and signed by the parties
hereto.
IN WITNESS WHEREOF, the Corporation has caused this Agreement to
be executed by its an officer thereof, thereunto duly authorized, and ▇▇▇▇▇▇▇
has hereunto set his hand, both as of the date and year first written above.
KNIGHTSBRIDGE FINE WINES, INC., a
Nevada corporation
By:
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman
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▇▇▇▇ ▇▇▇▇▇▇▇, Individually