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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this “ Agreement
”) is made and entered into as of the 27
th day of March, 2008, by and between
Rubicon Financial Incorporated,
a Delaware corporation (“
Rubicon ”),
and Terence Davis (“ Davis ”).
W I T N E S S E T H:
WHEREAS , the officers,
managers and/or directors of Rubicon are of the opinion that Davis
has education, experience and/or expertise which is of value to
Rubicon and its owners, and
WHEREAS , Rubicon and
Davis desire to enter into this Employment Agreement, pursuant to
which Davis shall be employed by Rubicon, to set forth the
respective rights, duties and obligations of the parties
hereto.
NOW THEREFORE , in
consideration of the promises and covenants contained herein, and
other good and valuable consideration, the receipt and sufficiency
of which the parties hereto acknowledge, Rubicon and Davis agree as
follows:
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1.
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EMPLOYMENT. Rubicon hereby agrees to employ Davis and Davis hereby accepts
such employment, upon the terms and conditions hereinafter set
forth.
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2.
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TERM . For purposes of this Agreement,
“ Term ” shall mean the original term (as defined in
Section 2.1 below), if
Renewal Term is initiated, then “Term” shall mean the
renewal term period.
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2.1
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Original Term: The Term of this Agreement shall commence on the date hereof
and expire on March 31, 2009, unless sooner terminated pursuant to
the terms and provisions herein stated.
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2.2
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Renewal Term(s): This Agreement shall automatically be extended for additional
one (1) year renewal terms unless earlier terminated in accordance
with the provisions of Section 6 below.
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3.1
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Salary: Rubicon
shall pay Davis a base annual salary of Eight Thousand Dollars
($8,000) per month, payable in accordance with Rubicon’s
normal policies but in no event less often than semi-monthly (the
“ Salary ”).
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3.2
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Stock Option Plan/Stock Purchase
Plan: Davis shall be eligible to
participate in Company’s Stock Option Plan and Stock Purchase
Plan during the term of employment.
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4.1
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General Benefits: Davis shall be entitled to receive or participate in all
benefit plans and programs of Rubicon currently existing or
hereafter made available to executives or senior management of
Rubicon, including but not limited to, dental and medical
insurance, including coverage for dependents of Davis, pension and
profit sharing plans, 401(k) plans, incentive savings plans, stock
option plans, group life insurance, salary continuation plans,
disability coverage and other fringe benefits.
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4.2
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Director and Officer Insurance:
Rubicon shall use commercially reasonable efforts to
purchase and maintain a Directors and Officers liability insurance
policy on terms and conditions deemed acceptable by the Board of
Directors, acting in good faith, which policy shall cover Davis at
all times during his employment Term, including any Renewal
Term(s). Such liability insurance shall be at a value of a minimum
of One Million dollars ($1,000,000).
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4.3
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Business Expense: Davis shall be provided with American Express and/or
Visa/Master Card credit cards issued in the name of Rubicon, for
purposes of paying business expenses, including without limitation,
business travel, entertainment, lodging and similar activities.
Additionally, Davis shall be entitled to receive proper
reimbursement for all reasonable out-of-pocket expenses incurred
directly by Davis in performing Davis’s duties and
obligations under this Agreement. Rubicon shall reimburse Davis for
such expenses on a monthly basis, upon submission by Davis of
appropriate receipts, vouchers or other documents in accordance
with Rubicon’s policy.
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4.4
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Cellular Telephone: Rubicon shall provide Davis with a cellular telephone for use
on Rubicon’s business and Rubicon shall be responsible for
all costs and expenses incurred in connection with the operation
and use of such cellular telephone, including but not limited to,
monthly service charges and maintenance; provided , however , that Rubicon shall not be
responsible for costs and expenses incurred for personal use of
Davis.
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4.5
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Vacation: Davis
shall be entitled during each twelve (12) month period during the
Term of this Agreement to a vacation of two (2) weeks during which
time Davis’s compensation will be paid in full. Unused days
of vacation will be compensated in accordance with Rubicon’s
policy as established by Rubicon from time to time. Davis may take
the vacation periods at any time during the year as long as Davis
schedules time off as to not create hardship on Rubicon. In
addition, Davis shall have such other days off as shall be
determined by Rubicon and shall be entitled to paid sick leave and
paid holidays in accordance with Rubicon’s policy.
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5.1
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Position: Davis
is employed as President and a nominated Member of the Board of
Directors and shall perform such services and
duties as are defined in Addendum
A , Job Description, attached hereto, and
as are normally associated with such position, subject to the
direction, supervision and rules and regulations of
Rubicon.
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5.2
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Place of Employment:
The place of Davis’s employment and the
performance of Davis’s duties will be at Rubicon’s
corporate headquarters or at such location as agreed upon by
Rubicon and Davis.
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5.3
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Extent of Services: Davis shall at all times and to the best of his ability perform
his duties and obligations under this Agreement in a reasonable
manner consistent with the interests of Rubicon. The precise
services of Davis may be extended or curtailed, from time to time
at the discretion of Rubicon, and Davis agrees to render such
different and/or additional services of a similar nature as may be
assigned from time to time by Rubicon. However, Rubicon shall not
materially alter Davis’s title, duties, obligations or
responsibilities or transfer Davis outside of the Orange County,
California area without Davis’s prior written
consent.
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5.3.1 Except as otherwise agreed by Rubicon
and Davis in writing, it is expressly understood and agreed that
Davis’s employment is fulltime and of a critical nature to
the success of Rubicon and is therefore exclusive. Davis may not be
employed by other entities, except for subsidiaries of Rubicon, or
otherwise perform duties and undertakings on behalf of others or
for his own interest unless pre-approved by the Board of Directors.
Rubicon acknowledges that Davis presently, or may in the future,
serve on the Board of Directors of other companies and such action
shall not be a breach of this section; provided , however , that such companies either:
(a) are listed on Addendum B
, attached her! eto; or (b) do not compete with
Rubicon or interfere with the performance of Davis’s duties
pursuant to this Agreement, as determined in the reasonable
judgment of the Board of Directors.
5.3.2 Additionally, Rubicon recognizes that
Davis has, or may have in the future, non-passive equity positions
in other companies, which either: (a) are listed on
Addendum B attached
hereto; or (b) do not compete with Rubicon in the reasonable
judgment of the Board of Directors. Rubicon recognizes that such
equity positions may occasionally require some limited attention
from Davis during normal business hours. However, Davis agrees that
if such time is considered excessive by the Board of Directors,
Davis shall be so advised and noticed by Rubicon and Davis shall be
required to make appropriate adjustments to ensure his duties and
obligations under this Agreement are fulfilled.
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6.
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TERMINATION. The
Term of this Agreement shall end upon its expiration pursuant
to Section 2 hereof, provided that this Agreement shall terminate prior to
such date: (a) upon Davis’s resignation, death or permanent
disability or incapacity; or (b) by Rubicon at any time for
“ Cause ” (as defined in Section
6.4 below) or without Cause.
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6.1
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BY RESIGNATION . If Davis resigns with
“ Good Reason ” (as defined below), this Agreement shall terminate but
Davis shall continue to receive, through the end of the Term of
this Agreement Davis’s Salary payable in periodic
installments on Rubicon’s regular paydays, at the rate then
in effect. For purposes of this Agreement, “
Good Reason ”
shall mean: (i) the assignment to Davis of duties substantially and
materially inconsistent with the position and nature of
Davis’s employment, the substantial and material reduction of
the duties of Davis which is inconsistent with the position and
nature of Davis’s employment, or the change of Davis’s
title indicating a substantial and material change in the position
and nature of Davis’s employment; (ii) a reduction in
compensation and benefits that would substantially diminish the
aggregate value of Davis’s compensation and benefits without
Davis’s written consent; (iii) the failure by Rubicon to
obtain from any successor, an agreement to assume and perform this
Agreement; or (iv) a corporate “ Change In Control ” (as defined
below). For purposes of this Agreement, “
Change In Control ” shall mean (1) a merger or consolidation in which
securities possessing more than fifty percent (50%) of the total
combined voting power of Rubicon’s outstanding securities are
transferred to a person or persons different from the persons
holding those securities immediately prior to such transaction in a
transaction approved by the stockholders, or the sale, transfer, or
other disposition of more than fifty percent (50%) of the total
combined voting power of Rubico
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