EXHIBIT 4.10
EMPLOYMENT AGREEMENT
This Agreement, dated as of March 15, 2004, is between NANNACO, INC.
("Employer" or the "Company"), and Steve Careaga ("Employee"). Employer and
Employee agree to the following terms and conditions of employment.
1. Period of Employment.
Employer shall employ Employee to render services to Employer in the
position and with the duties and responsibilities described in Section 2 for the
period (the "Period of Employment") commencing on the date of this Agreement and
ending on March 15, 2005.
2. Position and Responsibilities.
(a) Position.
Employee shall be employed with the company as Chief Executive Officer
and shall perform all services appropriate to that position, as well as such
other duties and services as may be assigned by Employer. Employee shall devote
his best efforts to the performance of his duties. Employee shall be subject to
the direction of Employer, which shall retain full control of the means and
methods by which he performs the above services and of the place(s) at which all
services are rendered.
(b) Other Activity.
Employee (during the Period of Employment) shall not be prohibited from
accepting other employment or engaging in other business, commercial or
professional activity provided that Employee shall not engage, directly or
indirectly, in any other business, commercial, or professional activity (whether
or not pursued for pecuniary advantage) that is or may be competitive with
Employer, that might create a conflict of interest with Employer, or that
otherwise might interfere with the business of Employer, or any Related Company.
A "Related Company" shall mean any person or entity that directly or indirectly
controls, is controlled by, or is under common control
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with Employer provided this control is disclosed to or otherwise known by
Employee. So that Employer may be aware of the extent of any other demands upon
Employee's time and attention, Employee shall disclose in confidence to Employer
the general nature and scope of any other business activity in which he is or
becomes engaged during the Period of Employment.
(c) Representations and Warranties.
Employee represents and warrants that (i) he is fully qualified and
competent to perform the responsibilities for which he is being hired pursuant
to the terms of this Agreement, and (ii) his execution of this Agreement, his
employment with Employers, and the performance of his proposed duties under this
Agreement shall not violate any obligations he may have to any former employer
(or other person or entity), including any obligations with respect to
proprietary or confidential information of any other person or entity. Employee
agrees that he will not use for the benefit of, or disclose to, Employer any
confidential information belonging to any former employer or other entity unless
he has written permission from the employer or entity to do so (or unless
Employer has been granted such permission).
3. Compensation and Benefits.
(a) Compensation.
(1) In consideration of the services to be rendered
under this Agreement, Employee shall receive 5,000,000 shares of common stock,
which shall be registered on Form S-8. Further compensation to be paid to
Employee shall be determined by mutual agreement of the parties at such time as
a new board of directors is elected and/or appointed.
(b) Insurance and Indemnity.
Employer shall obtain for the benefit of Employee director's and
officer's liability insurance coverage to protect Employee from
personal liability to the fullest extent allowed by law for acts
undertaken as an officer or director of Employer or an Affiliate.
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Furthermore, to the fullest extent allowed by law, Employer shall
indemnify Employee for and hold Employee harmless from any and all
claims or causes of action arising out of Employee's exercise of his
duties as an employee, officer or director of Employer or an Affiliate.
4. Termination of Employment.
(a) By Notice.
(b) By Employer For Cause.
At any time, and without prior notice, Employer may terminate Employee
for Cause. Employer shall pay Employee all compensation then due and owing;
thereafter, all of Employer's obligations under this Agreement shall cease.
Termination shall be for "Cause" if Employee: (i) acts in bad faith and to the
detriment of Employer; (ii) refuses or fails to act in accordance with any
specific direction or lawful order of Employer; (iii) exhibits in regard to his
employment unfitness or unavailability for service, misconduct, dishonesty,
habitual neglect, or incompetence; (iv) is convicted of a crime involving
dishonesty, breach of trust, or physical or emotional harm to any person; (v)
breaches any material term of this Agreement.
(c) Termination Obligations
(1) Employee agrees that all property, including, without
limitation, all equipment, tangible proprietary information, documents, books,
records, reports, notes, contracts, lists, computer disks (and other
computer-generated files and data), and copies thereof, created on any medium
and furnished to, obtained by, or prepared by Employee in the course of or
incident to his employment, belongs to Employer and shall be returned promptly
to Employer upon termination of the Period of Employment.
(2) All benefits to which Employee is otherwise entitled shall
cease upon Employee's termination, unless explicitly continued either under this
Agreement or under any specific written policy or benefit plan of Employer.
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(3) Upon termination of the Period of Employment, Employee shall
be deemed to have resigned from all offices and directorships then held with
Employer or any Affiliate.
(4) The representations and warranties contained in this
Agreement and Employee's obligations under this subsection 4(f) on Termination
Obligations shall survive the termination of the Period of Employment and the
expiration of this Agreement.
(5) Following any termination of the Period of Employment,
Employee shall fully cooperate with Employer in all matters relating to the
winding up of pending work on behalf of Employer and the orderly transfer of
work to other employees of Employer. Employee shall also cooperate in the
defense of any action brought by any third party against Employer that relates
in any way to Employee's acts or omissions while employed by Employer.
5. Notices.
Any notice or other communication under this Agreement must be in
writing and shall be effective upon delivery by hand or three (3) business days
after deposit in the United States mail, postage prepaid, certified or
registered, and addressed to Employers or to Employee at the corresponding
addresses below. Employee shall be obligated to notify Employers in writing of
any change in his address. Notice of change of address shall be effective only
when done in accordance with this Section.
Employer's Notice Addresses:
Nannaco, Inc.
2935 Thousand Oaks #261
San Antonio, TX 78247
Employee's Notice Address:
Steve Careaga
900 Fourth Avenue, Suite 3140
Seattle, WA 98164
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6. Action by Employers.
All actions required or permitted to be taken under this Agreement by
Employer, including, without limitation, exercise of discretion, consents,
waivers, and amendments to this Agreement, shall be made and authorized only by
the President, by his or his designated representative, or another
representative specifically authorized by the Board of Directors to fulfill the
obligations under this Agreement.
7. Integration and Other Policies.
This Agreement supersedes all other prior and contemporaneous
representations, agreements and statements, whether written or oral, express or
implied, and it may not be contradicted by evidence of any prior or
contemporaneous representations, statements or agreements. Except as
specifically restricted by an express provision of this Agreement, Employer
retains and may exercise all management rights and prerogatives in its
discretion. However, to the extent that the practices, policies, or procedures
of Employer, now or in the future, apply to Employee and are inconsistent with
the terms of this Agreement, the provisions of this Agreement shall control.
8. Amendments; Waivers.
This Agreement may not be amended except by an instrument in writing,
signed by each of the parties. No failure to exercise and no delay in exercising
any right, remedy, or power under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, or power
under this Agreement preclude any other or further exercise thereof, or the
exercise of any other right, remedy, or power provided herein or by law or in
equity.
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9. Assignment; Successors and Assigns.
Employee agrees that he will not assign, sell, transfer, delegate, or
otherwise dispose of, whether voluntarily or involuntarily, or by operation of
law, any rights or obligations under this Agreement. Any such purported
assignment, transfer, or delegation shall be null and void. Nothing in this
Agreement shall prevent the consolidation of Employer with, or its merger into,
any other entity, or the sale by Employer of all or substantially all of its
assets, or the otherwise lawful assignment by Employer of any rights or
obligations under this Agreement. Subject to the foregoing, this Agreement shall
be binding upon and shall inure to the benefit of the parties and their
respective heirs, legal representatives, successors, and permitted assigns, and
shall not benefit any person or entity other than those specifically enumerated
in this Agreement.
10. Severability.
If any provision of this Agreement, or its application to any person,
place, or circumstance, is held by an arbitrator or a court of competent
jurisdiction to be invalid, unenforceable, or void, such provision shall be
enforced to the greatest extent permitted by law, and the remainder of this
Agreement and such provision as applied to other persons, places, and
circumstances shall remain in full force and effect.
11. Attorneys' Fees.
In any legal action, arbitration, or other proceeding brought to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to recover reasonable attorneys' fees and costs.
12. Interpretation.
This Agreement shall be construed as a whole, according to its fair
meaning, and not in favor of or against any party. By way of example and not in
limitation, this Agreement shall not be construed in favor of the party
receiving a benefit nor against the party responsible for any particular
language in this Agreement. Captions are used for reference purposes only and
should be ignored in the interpretation of the Agreement.
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13. Proprietary Information.
Employee represents and warrants that Employer has consistently made
Employee's willingness to protect Employer's confidential and proprietary
information from any unauthorized use and disclosure, and Employee's willingness
to comply with the terms of Employer's confidentiality policies, procedures, and
agreements, conditions of (1) Employer's agreement to disclose confidential and
proprietary information to Employee, (2) Employee's employment, and (3)
Employee's continued employment. Employee agrees that Employer's requirement of
satisfactory confidentiality agreements is reasonable and necessary to protect
Employer's confidential and proprietary information and to effectuate the
purposes of, and is ancillary to, Employee's employment agreement.
14. Acknowledgment.
The parties acknowledge that they have had the opportunity to consult
legal counsel in regard to this Agreement, that they have read and understand
this Agreement, that they are fully aware of its legal effect, and that they
have entered into it freely and voluntarily and based on their own judgment and
not on any representations or promises other than those contained in this
Agreement.
The parties have duly executed this Agreement as of the date first
written above.
NANNACO, INC.
By: Steve Careaga
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Its: CEO
By: Steve Careaga, Individually
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