EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is effective as of the 14th day of
August 2008 by and between Nascent Wine Company, Inc. and its successors and
survivors with principal offices currently located at 2355 Paseo De Las
Americas, San Diego, California 92154 (the "Company"), and Sandro Piancone with
principal address at 826 Scenic Terrace Place, Chula Vista, CA 91914
("Executive").
WHEREAS:
A. The Company and the Executive acknowledge and agree that the
Company has, prior to the execution of this Agreement, employed
Executive under various oral and written agreements, understandings,
and arrangements.
B. The Company and the Executive acknowledge and agree that each
party seeks to revoke all prior oral and written agreements,
understandings, and arrangements between the Company and the Executive
in connection with Executive's employment by the Company.
C. The Company desires to be assured of the continued association
and services of Executive for the Company.
NOW THEREFORE, in consideration of the foregoing, the mutual covenants contained
herein and other good and valuable consideration, receipt of which Executive and
Company hereby acknowledge, Executive and Company agree as follows:
1.00. EMPLOYMENT. The Company hereby employs Executive, subject to the
supervision and direction of the Company's Board of Directors. Executive shall
hold the title of CEO of the Company.
1.01 POSITION. Executive agrees to carry out duties and responsibilities of the
position as reasonably determined by the Board of Directors.
2.00. TERM OF EMPLOYMENT. The initial term (the "Initial Term") of Executive's
employment shall be for the period commencing on 1st day of August 2008 and
terminating on July 31, 2012. The term of employment shall be automatically
renewed for a period of five (5) years (the "Renewal Term") following the close
of the Initial Term unless the Company gives written notice to Executive no
later than thirty (30) days prior to the close of the Initial Term. However,
notwithstanding the above provisions, the term of Executive's employment may be
terminated earlier pursuant to sections 7.00, 8.00, or 9.00. of this Agreement.
Executive's obligations under Sections 12.00 and 13.00, and the sub-sections
thereto below shall remain in full force and effect after any such termination.
3.00. COMPENSATION & REIMBURSEMENT. The Company and the Executive agree that the
Company shall pay Executive a salary, compensation, benefits, and reimbursement
for allowable expense as follows:
3.01. SALARY. Subject to the conditions set forth in Section 3.00, for all
services rendered by Executive under this Agreement, the Company shall pay
Executive a base salary of One hundred and fifty thousand Dollars ($150,000) per
annum, payable on a bi-monthly basis in equal installments (the "Base Salary").
The amount of the Base Salary may be increased at any time, and from time to
time by the Company's Board of Directors or a designated committee thereof. The
Base Salary may be adjusted annually to reflect changes in the Consumer Price
Index for the San Diego, California base area. No such change shall in any way
abrogate, alter, terminate or otherwise effect the other terms of this
Agreement.
3.02. ADDITIONAL BENEFITS & VACATION. Subject to the conditions set forth in
section 3.00 and in addition to the Base Salary, Executive shall be entitled to
all other benefits of employment as established from time to time and provided
to the other management of the Company or its affiliates. Executive shall be
entitled to receive four (4) weeks of vacation (with payment of Executive's Base
Salary) ("Paid Vacation") per annum. Executive may also take 4 weeks Paid
Vacation during the first year of employment. One-half of any vacation time not
used by December 31 shall accrue to the following year.
3.03. REIMBURSEMENT. Executive shall be reimbursed for all reasonable
"out-of-pocket" business expenses for business travel and business entertainment
incurred in connection with the performance of his duties under this Agreement
so long as: (i.) such expenses constitute business deductions from taxable
income for the Company and are excludable from taxable income to the Executive
under the governing laws and regulations of the Internal Revenue Code (provided,
however, that Executive shall be entitled to full reimbursement in any case
where the Internal Revenue Service may, under Section 274(n) of the Internal
Revenue Code, disallow to the Company 20% of meals and entertainment expenses);
and (ii) to the extent such expenses do not exceed the amounts allocable for
such expenses in budgets that are approved from time to time by the Company. The
reimbursement of Executive's business expenses shall be upon monthly
presentation to and approval by the Company of valid receipts and other
appropriate documentation for such expenses.
4.00. SCOPE OF DUTIES. The scope of Executive's duties to the Company include
the following:
4.01. ASSIGNMENT OF DUTIES. Executive shall have such duties as may assigned to
him from time to time by the Company's Board of Directors commensurate with his
experience and responsibilities in the position for which he is employed
pursuant to Section 1.00 above. Such duties shall be exercised subject to the
control and supervision of the Company's Board of Directors.
4.02. GENERAL SPECIFICATIONS OF DUTIES. Executive's duties shall include, but
not be limited to the duties as follows:
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(A) serve as CEO and Director with responsibilities for such
matters that are usual and customary responsibilities for an Executive serving
in the above capacities and acting on behalf of and for the sole benefit the
Company.
(B) serve in such other equal capacities for the Company as
assigned by the Company's Board of Directors. The foregoing specifications are
not intended as a complete itemization of the duties which Executive shall
perform and undertake on behalf of the Company in satisfaction of his employment
obligations under this Agreement.
5.00 EXECUTIVE'S PLAN. Executive shall submit to the Board of Directors for its
approval, not later than sixty (60) days before the beginning of each calendar
year an annual Stragetic/Operating plan describing the activities (the
"Activities") to be undertaken by Executive on behalf of the Company (the
"Plan") or by the Company during the following calendar year. The Company and
the Executive agree, that by mutual written agreement, the Plan may be revised
one or more times during any calendar year to reflect the exigencies of market
conditions and the Company's operating realities. Each Plan shall include the
following information: (i.) budget projections, (ii.) measurable goals, (iii.)
assumptions underlying principal projections, and (iv.) specified goals with
respective calendar milestones.
6.00 EXECUTIVE'S DEVOTION OF TIME. Executive hereby agrees to devote his full
time, abilities and energy to the faithful performance of the duties assigned to
him and to the promotion and forwarding of the business affairs of the Company.
Executive further agrees he has a fiduciary duty not to divert any business
opportunities from the Company to himself or to any other person or business
entity.
6.01. CONFLICTING ACTIVITIES. Executive shall not, during the term of this
Agreement, be engaged in any other business activity without prior consent of
the Board of Directors of the Company; provided, however, that this restriction
shall not be construed as preventing Executive from investing his personal
assets in passive investments in business entities which are not in competition
with the Company or in violation of his fiduciary duties to the Company.
6.02. FIDUCIARY DUTIES OF EXECUTIVE. Executive hereby agrees he is bound by
fiduciary duties required under Nevada Revised Statutes 78.138. Executive
further agrees to promote and develop all business opportunities that come to
his attention relating to current or anticipated future business of the Company,
in a manner consistent with the best interests of the Company and with his
duties under this Agreement. Should Executive discover a business opportunity
while in the employ of the Company using the Company's resources that does not
relate to the current or anticipated future business of the Company, he shall
first offer such opportunity to the Company. Should the Board of Directors elect
not exercise the Company's right to pursue this business opportunity within a
reasonable period of time, not to exceed sixty (60) days, then Executive may
develop the business opportunity for himself; provided, however, that such
development may in no way conflict or interfere with the duties owed by
Executive to the Company under this Agreement. Further, Executive may develop
such business opportunities only on his own time, and may not use any service,
personnel, equipment, supplies, facility, or trade secrets of the Company in the
development of such business opportunity. As used herein, the term "business
opportunity" shall not include business opportunities involving investment in
publicly traded stocks, bonds or other securities, or other investments of a
personal nature.
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7.00 TERMINATION OF EMPLOYMENT. If the Executive is terminated without cause, or
this agreement is not renewed, the Executive shall immediately and automatically
be deemed a consultant (the "Executive Consultant") of the Company and enter
into a four year consulting agreement (the "Consulting Agreement"). Compensation
shall be $100,000 per year payable bi-monthly. Additionally, the Executive
Consultant shall be reimbursed promptly for expenses incurred while performing
projects which may be assigned by the CEO and/or the Board of Directors. The
Executive Consultant shall make himself available for a minimum of 20 hours a
month. Additional consulting hours shall be billed at a rate of $100.00 per
hour, payable by the Company within seven (7) days of the invoice date.
Additionally, all unvested stock options and/or performance grants shall
immediately vest upon non-renewal of this Agreement. Also, the Company shall
immediately take whatever action that may be required cause the Executive to be
removed as a guarantor, co-signer or co-borrow of any and all borrowing made for
the benefit of the Company, its successors and/or survivors.
7.01 CHANGE IN RESPONSIBILITIES AND/ORCONTROL. If the responsibilities of the
Executive are changed or diminished as determined by the Executive OR at least
thirty (30) percent of the ownership of the Company's Common Stock has changed
as a result of a merger, acquisition or any other business combination OR the
majority of the Company's Board of Directors are replaced. The Executive shall
within 60 days decide to exercise the right to immediately and automatically be
deemed a Executive Consultant of the Company and enter into a four year
agreement. Compensation shall be $100,000 per year payable bi-monthly.Also, the
Company shall immediately take whatever action that may be required cause the
Executive to be removed as a guarantor, co-signer or co-borrow of any and all
borrowing made for the benefit of the Company, its successors and/or survivors.
8.00. TERMINATION.
(a) DEATH OR DISABILITY. This Agreement shall automatically terminate
upon the death or Disability of Executive and, thereafter all of his rights
hereunder, including the rights to receive compensation and benefits, except as
otherwise required by law, shall terminate; provided that, upon termination of
this Agreement as a result the death or Disability of Executive, Executive or
his estate shall be entitled to a one-time pro rata share (through the
termination date) of any target bonus for the fiscal year in which such
termination occurred (the "Pro Rated Bonus"). As used herein, the term
"Disability" means the physical or mental illness or incapacity (including,
without limitation, as a result of abuse of alcohol or other drugs or controlled
substances) of Executive which results in the Executive being unable to
substantially perform the duties and services required to be performed under
this Agreement for a period of: (i) one hundred twenty (120) consecutive days or
longer or (ii) one hundred eighty (180) days in any three hundred sixty (360)
consecutive day period.
(b) TERMINATION WITH NOTICE BY EITHER PARTY. The Company or Executive
may terminate this Agreement for any reason or no reason upon thirty (30) days
prior written notice to the other. In case of termination by the Company only
under this paragraph, the Company shall pay Executive as an Executive Consultant
prusuants to the terms of section 7.0 and/or 7.
(c) TERMINATION FOR GOOD CAUSE. As used herein "GOOD CAUSE" shall mean
any one or more of the following as determined by a majority vote of the Board
of Directors:
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(1) a continuing material breach or material default (including,
without limitation, any material deriliction of duty) by Executive of the terms
of this Agreement, except for any such breach or default which is caused by the
physical disability of Executive (as determined by a neutral physician);
(2) gross negligence, willful misfeasance or breach of fiduciary
duty by Executive;
(3) conviction of Executive of a felony that would materially and
adversely affect: (i) the business reputation of the Company or (ii) the
performance of the Executive's duties hereunder.
In the event of a termination by the Company for Good Cause, the
Company will pay the Executive the Base Salary earned and expenses reimbursable
under this Agreement incurred through the date of the Executive's termination,
and shall have no further responsibility for termination or other payments to
Executive.
(d) TERMINATION FOR GOOD REASON. Executive may terminate his employment
under this Agreement at any time for "Good Reason." In case of termination
hereof by the Executive for Good Reason, the Company shall pay Executive as an
Exeutive Consulant pursuant to Sections 7.0 and/or 7.01. Executive shall
maintain any rights that Executive may have been specifically granted to
Executive pursuant to any of the Company's retirement plans, supplementary
retirement plans, profit sharing and savings plans, healthcare, 401(k) any other
employee benefit plans sponsored by the Company. ."
For purposes of this Agreement, the term "GOOD REASON" means, in each
case without the consent of Executive:
(1) any material diminution in the office, title, duties, powers,
authority or responsibilities, which diminution is not corrected within thirty
(30) days after the Company receives written notice thereof from Executive;
(2) (A) the Company fails to pay Executive his Base Salary in
accordance with generally applicable Company policy or (B) Executive's Base
Salary is decreased without consent of Executive, which failure or decrease is
not corrected within thirty (30) days after the Company receives written notice
thereof from Executive; pROVIDED, HOWEVER, that the foregoing shall not apply in
the case of a decrease to Executive's Base Salary made as part of an across the
board base salary decrease affecting all of the Company's senior executive
officers as provided for in Section 3(a) hereof; or
(3) Executive is discriminatorily denied material benefits under
the Company's prevailing policies and plans, which denial is not corrected
within thirty (30) days after the Company receives written notice thereof from
Executive.
(e) TERMINATION UPON A CHANGE OF CONTROL. In the event that: (i) this
Agreement or Executive's employment with the Company is terminated by the
Company or its successor or (ii) the duties of Executive are materially
diminished or (iii) Executive is required to relocate his principal place of
employment with the Company more than seventy-five (75) miles from his principal
place of employment with the Company as of the date hereof, in either case
within three (3 months following the occurrence of a "Change of Control" (as
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defined below) of the Company (each, a "SEVERENCE TRIGGERING EVENT"), then: (A)
the Company shall shall engage the Executive as a Executive Consultant prusunat
to Sections 7and/or 7.01. (2) Executive shall maintain any rights that Executive
may have been specifically granted to Executive pursuant to any of the Company's
or its successor's retirement plans, supplementary retirement plans, profit
sharing and savings plans, healthcare, 401(k) and any other employee benefit
plans sponsored by the Company and (iii) all unvested options and performance
grants to acquire shares of Company common stock granted to Executive under the
Company's 2008 Incentive Plan or any succesor plan shall immediately become
fully vested and shall be exerciseable over a period of three (5) years from the
occurrence of a Severence Triggering Event.
For purposes of this Agreement, the term "CHANGE OF CONTROL" means the
occurrence of any one or more of the following events (it being agreed that,
with respect to paragraphs (i) and (iii) of this definition below, a "Change of
Control" shall not be deemed to have occurred if the applicable third party
acquiring party is an "affiliate" of the Company within the meaning of Rule 405
promulgated under the Securities Act of 1933, as amended):
(i) An acquisition (whether directly from the Company or
otherwise) of any voting securities of the Company (the "VOTING SECURITIES") by
any "Person" (as the term person is used for purposes of Section 13(d) or 14(d)
of the Securities and Exchange Act of 1934, as amended (the "1934 ACT")),
immediately after which such Person has "Beneficial Ownership" (within the
meaning of Rule 13d-3 promulgated under the 1934 Act) of forty percent (40%) or
more of the combined voting power of the Company's then outstanding Voting
Securities.
(ii) The individuals who, as of the date hereof, are members
of the Company's Board of Directors cease, by reason of a financing, merger,
combination, acquisition, takeover or other non-ordinary course transaction
affecting the Company, to constitute at least fifty-one percent (51%) of the
members of the Board of Directors; or
(iii) Approval by the Board of Directors and, if required,
stockholders of the Company of , or execution by the Company of any definitive
agreement with respect to, or the consummation of (it being understood that the
mere execution of a term sheet, memorandum of understanding or other non-binding
document shall not constitute a Change of Control):
(A) A merger, consolidation or reorganization involving
the Company, where either or both of the events described in clauses (i) or (ii)
above would be the result;
(B) A liquidation or dissolution of or appointment of a
receiver, rehabilitator, conservator or similar person for, or the filing by a
third party of an involuntary bankruptcy against, the Company; or
(C) An agreement for the sale or other disposition of
all or substantially all of the assets of the Company to any Person (other than
a transfer to a subsidiary of the Company).
9.00 COVENANT NOT TO COMPETE. The Executive acknowledges that he is Chief
Executive Officer of the Company and in such capacity the Executive will have
access to corporate records, business plans, and all of the business research
conducted by or on behalf of the Company. The Executive also acknowledges that
he will have access to confidential information about the Company and its
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affairs and that he will have access to other "proprietary information" (as
defined in section 13.00 hereto) acquired by the Company at the expense of the
Company for use in its business. The Executive has industry knowledge and
skills. The Executive's services to the Company are special, unique and
extraordinary. Accordingly, by execution of this Agreement.
9.01 NON-COMPETITION BY EXECUTIVE. Executive agrees that during the Employment
Period and twelve (12) months after the Executive's Employment period with the
Company or any of its affiliates, successors or assigns, Executive will not,
unless acting with the Company's express written consent, directly or indirectly
own, manage, operate, join, control or participate in the ownership, management,
operation or control of or be connected as an officer, employee, partner or
otherwise with any business engaged in the development, sale or distribution of
services incorporating the business, products or strategy of the Company. The
Executive shall also not directly or indirectly solicit any such business from
any individual or entity which obtained such products from the Company at any
time during the Executive's Employment Period or directly or indirectly solicit
any such business from any individual or entity previously solicited by the
Executive on behalf of the Company.
9.02 NEED FOR COVENANT, LEGAL REMEDIES. The Executive expressly agrees and
acknowledges that this Covenant Not to Compete is reasonably necessary for the
Company's Protection because of the nature and scope of the Company's business
and the Executive's position with and services for the Company. Further, the
Executive acknowledges that, in the event of his breach of this Covenant Not to
Compete, money damages will not sufficiently compensate the Company for its
injury caused thereby, the Executive accordingly agrees that in addition to such
money damages the Executive shall, if Company so elects, be restrained and
enjoined from any continuing breach of this Covenant Not to Compete without any
bond or other security being required by any court. The Executive acknowledges
that any breach of this Covenant Not to Compete would result in irreparable
damages to the Company.
9.03 ACKNOWLEDGEMENTS BY EXECUTIVE. The Executive expressly agrees and
acknowledges as follows:
(1) This Covenant Not to Compete is reasonable as the time and
does not place any unreasonable burden upon him.
(2) The general public will not be harmed as a result of
enforcement of this Covenant Not to Compete.
(3) Executive has requested or has had the opportunity to request
that his personal legal counsel review this Covenant Not to
Compete.
(4) The Executive understands and hereby agrees to each and every
term and condition of this Covenant Not to Compete.
Initials:___________________________________________
10.00 PROPRIETARY INFORMATION.
The Executive acknowledges that he is Chief Executive Officer of the Company and
in such capacity the Executive will have access to corporate records, business
plans, and all of the business research conducted by or on behalf of the
Company. The Executive also acknowledges that he will have access to
confidential information about the Company and its affairs and that he will have
access to other "proprietary information" as defined in Section 9.03 herein
acquired by the Company at the expense of the Company for use in its business.
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10.01 RETURN OF PROPRIETARY INFORMATION. Upon termination of this Agreement for
any reason, the Executive shall immediately turn over to the Company and
"Proprietary Information," as defined below. The Executive shall have no right
to retain any copies of any material qualifying as Proprietary Information for
any reason whatsoever after termination of his employment hereunder without the
express written consent of the Company.
10.02 NON-DISCLOSURE. It is understood and agreed that, in the course of his
employment hereunder and through his activities for and on behalf of the
Proprietary Information in trust and confidence for the Company. The Executive
agrees that he shall not, during the term of this Agreement or thereafter, in
any fashion, form or manner, directly or indirectly, retain use, make copies of,
divulge, disclose or communicate to any person, in any manner whatsoever, except
when necessary or required in the normal course of the Executive's employment
hereunder and for the benefit of the Company or with the express written consent
of the Company, any of the Company's Proprietary Information or any information
of any kind, nature, or description whatsoever concerning any matter affecting
or relating to the Company's business.
10.03 PROPRIETARY INFORMATION DEFINED. For purposes of this Agreement,
"Proprietary Information" means and includes the following: (1) any written,
typed or printed lists or other materials identifying the business, products, or
strategy conducted by or on behalf of the Company; (2) any financial or other
information supplied by customers of the Company; (3) any and all data or
information involving the techniques, programs, methods or contracts employed by
the Company in the conduct of its business; (4) any lists, documents, manuals,
records, forms, or other materials created and used by the Company in the
conduct of its business; (5) any descriptive materials describing the methods
and procedures employed by the Company in the conduct of its business; and (6)
any other secret or confidential information concerning the Company's business,
affairs or technology. The term "list", "document", or their equivalent, as used
in this Section, are not limited to a physical writing or compilation, but also
include computer software and any and all information whatsoever regarding the
subject matter in the "list" or "document" whether or not such compilation has
been reduced to writing.
Not withstanding the foregoing, Proprietary Information shall
cease to be protected hereunder once it has become part of the public domain, or
upon the written agreement of the Company.
11.00 TERMINATION OF PRIOR AGREEMENTS. This Agreement terminates and supersedes
any and all prior agreements and understandings between the parties with respect
to employment or with respect to the compensation of the Executive by the
Company.
12.00 ASSIGNMENT. This Agreement is personal in nature and neither of the
parties hereto shall, without the prior written consent of the other, assign or
transfer this Agreement or any rights or obligations hereunder; provided,
however, that in the event of the merger, consolidation or transfer sale of all
or substantially all of the assets of the Company with or to any other
individual or entity, this Agreement shall, subject to the provisions hereof, be
binding upon and inure to the benefit of such successor and such successor shall
discharge and perform all the promises, covenants, duties, and obligations of
the Company hereunder.
Not withstanding the foregoing, Proprietary Information shall
cease to be protected hereunder once it has become part of the public domain, or
upon the written agreement of the Company.
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13.00 TERMINATION OF PRIOR AGREEMENTS. This Agreement terminates and supersedes
any and all prior agreements and understandings between the parties with respect
to employment or with respect to the compensation of the Executive by the
Company.
14.00 NOTICE. Any notice under this Agreement must be in writing, may be
telecopied or sent by 24-hour express guaranteed courier, or hand-delivered, or
may be served by depositing the same in the United States mail, addressed to the
party to be notified, postage-prepaid and registered or certified with a return
receipt requested. The addresses of the parties for the receipt of notice shall
be as follows:
If to the Company:
Nascent Wine Company, Inc.
2355 Paseo De Las Americas Suite A
San Diego, CA 92154
If to the Executive:
Each notice given by registered or certified mail shall be deemed delivered and
effective on the date of delivery as shown on the return receipt, and each
notice delivered in any other manner shall be deemed to be effective as of the
time of actual delivery thereof. Each party may change its address for notice by
giving notice thereof in the manner specified above.
15.00 GOVERNING LAW. This Agreement and the document referenced herein and the
legal relations thus created between the parties hereto shall be governed by and
construed under and in accordance with laws of the U.S. States and CA .
16.00 ENTIRE AGREEMENT. This Agreement embodies the entire agreement of the
parties respecting the matters within its scope and may be modified only in
writing.
17.00 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, nor shall any waiver or relinquishment of, or failure to
insist upon strict compliance with, any right power hereunder at any one time or
times.
18.00 ATTORNEY'S FEES. The Executive and the Company agree that in any
arbitration or legal proceedings arising out of the Agreement, each party shall
pay his or its own legal fees and expenses.
19.00 ARBITRATION. All claims, disputes and other matters in question between
the parties concerning or arising out of the employment relationship, this
Agreement and/or the termination of this Agreement shall be decided by
arbitration in San Diego, California in accordance with the rules of the
American Arbitration Association, unless the parties mutually agree otherwise.
The award by the arbitrator shall be final, and judgment may be entered upon it
in accordance with applicable law in any California or Federal court having
jurisdiction thereof.
20.00 EXHIBIT AND COUNTERPARTS. Exhibit A attached to this Agreement is
incorporated into and is an integral part of this Agreement. This Agreement may
be executed in any number of counterparts.
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21.00 SEVERABILITY. In the event that a court of competent jurisdiction
determines that any portion of this Agreement is in violation of any law,
statute or public policy, then only the portions of this Agreement which violate
such statute or public policy shall be stricken. All portions of this Agreement
shall modify the stricken terms as narrowly as possible to give as much effect
as possible to the intentions of the parties under this Agreement.
22.00 ACKNOWLEDGEMENT. The parties to this Agreement understand and agree that
the Company has only a operating history and that the industry in which the
Company operates is highly competitive an subject to risks that are beyond the
Company's control and influence. In the event the Company discontinues its
operations at any time for any or no reason whatsoever or becomes unable to
perform its duties and obligations as specified herein, the Executive agrees to
look solely to the Company for performance under this Agreement and will not
look to the Company's other officers, stockholders, agents, or any combination
of them.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its
duly authorized officer and the Executive has hereunto executed this Agreement,
effective the first day written above.
Nascent Wine Company, Inc
BY: /s/ Sandro Piancone
---------------------------------
Sandro Piancone
THE EXECUTIVE
/s/ Sandro Piancone
-------------------------------------
Sandro Piancone
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