Exhibit 10.4
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT
AGREEMENT (this “Agreement”) is effective as of the
1 st
day of
November, 2006, by and between Hiromitsu Ogawa
(“Employee”) and Container Applications International,
Inc., a Nevada corporation (the “Company”). In
consideration of the mutual covenants herein contained, and in
consideration of the continued employment of Employee by the
Company, the parties agree as follows:
1. Duties and Scope of
Employment.
(a) Position. The Company
agrees to employ the Employee for the term of his employment under
this Agreement in the position of Executive Chairman on the terms
and conditions set forth in this Agreement.
(b) Management Authority. As
such officer, Employee shall be responsible for supervising the
operations of the Company, including without limitation the
procurement and marketing and supervising the officers of the
Company.
(c) Consulting with the Board of
Directors. Without limiting the provisions of Section 1(b)
of this Agreement and without limiting consultations which the
Board of Directors may call for from time to time, Employee shall
from time to time consult with a representative of the Board of
Directors regarding the following items:
(i) changes in office
locations;
(ii) the Company’s financial
performance;
(iii) the procurement of equipment;
and
(iv) material legal
matters.
(d) Obligations. During the
term of his employment under this Agreement, the Employee shall
perform and discharge well and faithfully his duties and shall
devote his full business efforts and time to the Company. The
foregoing, however, shall not preclude the Employee from engaging
in appropriate civic or charitable activities or from serving on
the boards of directors of other noncommercial entities, as long as
such activities and service do not interfere or conflict with his
responsibilities to the Company.
2. Base Salary.
During his employment under this
Agreement, the Company agrees to pay to the Employee as
compensation for his services, effective November 1, 2006, a
base salary (“Base Salary”) at an initial annual rate
of $525,874, payable in twenty-four (24) equal bi-monthly
installments and on July 1 of each subsequent year that this
Agreement is in place, beginning on July 1, 2007, the
employee’s Base Salary shall be increased by at least four
percent (4%) of the Employee’s then-current Base
Salary.
3. Employee Benefits.
(a) General. During the term
of his employment under this Agreement, the Employee shall be
eligible to participate in the employee benefit plans and executive
compensation programs made available by the Company to its
executive officers generally, including (without limitation) any of
the following plans if and when adopted by the Board of Directors:
pension plans, savings plans, deferred compensation plans, life,
disability, health, accident and other insurance programs, paid
vacations, and similar plans or programs subject in each case to
the generally applicable terms and conditions of the plan in
question and to the determination of any committee or other person
administering such plan or program.
(b) Disability. Subject to
the Employee’s insurability, the Company will maintain a
policy of long-term disability insurance providing for a 60-day
exclusion period and disability coverage for sixty percent
(60%) of Employee’s Base Salary, with the Employee named
as the direct beneficiary.
(c) Vacation . The Employee
shall be entitled to paid vacation accruing at the rate of 20 days
per year. No more than 20 days of accrued vacation shall carry
forward to the next year.
4. Profit-Sharing
Bonus.
(a) For each Fiscal Year during the
term of this Agreement, the Company shall pay to the Employee a
profit-sharing bonus, if any, as determined by this Section 4.
For all purposes of this Agreement, “Fiscal Year” shall
mean the Company’s fiscal year ending on
December 31.
(b) For each Fiscal Year during the
term of this Agreement until the closing of the initial public
offering of the Company’s Common Stock (“IPO”),
Employee shall be entitled to a profit-sharing bonus equal to the
following percentages of the Employee’s Base Salary,
depending upon whether the Company meets or achieves its budget for
Pre-Tax Profit for such Fiscal Year, as further set forth
below:
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Percent of Budgeted Pre-Tax
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Bonus
(as a Percentage of Base Salary)
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less than 70%
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0%
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70%
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10%
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|
80%
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20%
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90%
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30%
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100%
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40%
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110%
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50%
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120%
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60%
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130%
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70%
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140%
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80%
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150%
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90%
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160% and
above
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100%
|
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Following the IPO, the foregoing
provisions of this Section 4 shall no longer be applicable and
any bonus to Employee shall be in the complete discretion of the
Company’s board of directors.
(c) “Pre-Tax Profit” for
any Fiscal Year shall mean the Company’s net income for such
fiscal year (but not less than zero), before any reduction or
addition for any income taxes, for net operating loss carryforwards
or carrybacks or for the bonus payable under this Section 4,
as determined by the Company’s independent public
accountants.
(d) Amounts due to the Employee
under this Section 4 with respect to any Fiscal Year shall be
payable within thirty (30) days following the receipt by the
Company of audited financial statements for such Fiscal Year,
certified by the Company’s independent public accountants,
but in no event later than March 15th of the calendar year
immediately following such Fiscal Year.
(e) The Employee’s entitlement
to a bonus under this Section 4 shall not accrue until the
last day of each fiscal year ending during the term of this
Agreement. Except as provided in Section 7(b)(iii), no bonus
shall be payable under this Section 4 unless Employee’s
employment under this Agreement continues through the end of the
applicable Fiscal Year.
5. Business Expenses and
Travel.
During the term of his employment
under this Agreement, the Employee shall be authorized to incur
necessary and reasonable travel, entertainment and other business
expenses in connection with his duties hereunder. The Company shall
reimburse the Employee for such expenses upon presentation of any
itemized account and appropriate supporting documentation, all in
accordance with the Company’s generally applicable
policies.
6. Term of
Employment.
(a) Basic Rule. Unless the
Employee’s employment terminates at an earlier date pursuant
to the provisions of this Agreement, the Company agrees to continue
the Employee’s employment, and the Employee agrees to remain
in the employ of the Company, for two (2) years from the
effective date of the IPO; provided, however, that the Employee may
terminate his employment at any time following the one-year
anniversary of the IPO, if he provides the Company with at least
thirty (30) days prior notice.
(b) Termination by the
Company. Notwithstanding the foregoing, the Company may
terminate Employee’s employment for any of the following
reasons:
(i) Death . Upon the event of
the Employee’s death, Employee’s employment with the
Company shall be considered automatically terminated.
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(ii) Disability . Upon the
event of the Employee’s Disability, Employee’s
employment with the Company shall terminate 30 days after the
Company gives the Employee written notice of such termination. For
all purposes of this Agreement, “Disability” shall mean
that the Board of Directors determines (with the Employee
abstaining) that the Employee is unable to perform his duties under
this Agreement for a continuous period of at least 180 days due to
physical or mental illness or impairment.
(iii) Company Insolvency. If
the Company becomes insolvent or the Company seeks relief (or an
order is entered against the Company) under any bankruptcy,
reorganization, receivership, transfer for the benefit of creditors
or other debtor relief statute or arrangement, Employee’s
employment with the Company shall terminate 30 days after the
Company gives Employee written notice of the
termination.
(iv) Termination for Cause .
The Company (acting pursuant to a resolution of the Board of
Directors), at its option and without prejudice to any other remedy
to which the Company may be entitled either at law, in equity, or
under this Agreement, may terminate the Employee’s employment
at any time for Cause by giving the Employee notice in writing
specifying the reason for the termination. For all purposes under
this Agreement, “Cause” shall mean:
(A) A failure by the Employee to
substantially perform his duties hereunder which is not cured
within thirty (30) days after notice from the Company,
provided that any termination for any such failure due to physical
or mental illness or impairment shall be made, if at all, in
accordance with Section 6(b)(ii);
(B) An act by the Employee of
material dishonesty, fraud, misrepresentation, or other act(s) of
moral turpitude;
(C) An intentional act by the
Employee (other than one constituting a business judgment that was
reasonable at the time or which was previously approved by the
Board of Directors or the Board’s representative nominated by
the Company’s Chairman of the Board pursuant to
Section 1(d)), or a clear lack of reasonable care by the
Employee, or gross misconduct by the Employee, which (in each case)
is seriously injurious to the Company;
(D) A material breach by the
Employee of this Agreement which is not cured within thirty
(30) days after notice from the Company; or
(E) A material and willful violation
of a federal or state law or regulation applicable to the business
of the Company.
(c) Constructive Termination.
If any Constructive Termination continues more than thirty
(30) days after the Employee gives the Company notice in
writing specifying the Constructive Termination in question, the
Employee may, by a second written notice to the
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Company given within thirty (30) days after
his initial notice, terminate his employment with the Company and
treat such termination as a termination of his employment by the
Company effective upon such second notice. Notwithstanding the
foregoing, if at the time the Employee terminates his employment
with the Company on account of a Constructive Termination, any of
the circumstances described in
Section 6(b)(iii)-(iv) then exists, then the
Employee’s employment shall be deemed to have been terminated
by the Company pursuant to such Section, rather than pursuant to
this Section for all purposes of this Agreement. For all purposes
under this Agreement, “Constructive Termination” shall
mean:
(i) without the Employee’s
written consent, the assignment by the Company to the Employee of
any substantial duties that are inconsistent with the
Employee’s position as Executive Chairman of the
Company;
(ii) any material breach by the
Company of this Agreement;
(iii) without the Employee’s
written consent, a requirement to relocate, except for office
relocation within the San Francisco Bay area; provided that the
Employee hereby acknowledges that he may be required to travel
extensively in connection with the performance of his duties under
this Agreement; and
(iv) without the Employee’s
written consent, the hiring by the Company of officers and
management employees who are not approved by Employee.
(d) Waiver of Notice. Any
waiver of notice shall be valid only if it is made in writing and
expressly refers to the applicable notice requirement in this
Section 6.
7. Payments Upon Certain
Terminations of Employment.
If, during the term of this
Agreement, t