Exhibit 10.5
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT
AGREEMENT (this “Agreement”) is effective as of the
1 st
day of
November, 2006, by and between Masaaki Nishibori
(“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 President and Chief Executive
Officer on the terms and conditions set forth in this
Agreement.
(b) Management Authority. As
such officer, Employee shall be responsible for the day-to-day
operations of the Company, including without limitation the
following, subject to the oversight and policy determinations of
the Board of Directors:
(i) the hiring and firing of
personnel and professional advisors;
(ii) implementing the business plan
and procurement policies approved by the Company’s board of
directors, including procuring containers, entering into depot
and/or agency partnerships and customer leases and opening and
closing Company offices;
(iii) determining the salary and
fringe benefits to be paid to the Company’s employees (other
than any officer at or above the level of senior vice president of
the Company); and
(iv) supervising all accounting,
administrative and legal matters within the ordinary course of the
Company’s business.
(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 the Chairman of the Company’s
Board of Directors regarding the following items:
(i) changes in office
locations;
(ii) the Company’s annual
budget and financial performance;
(iii) hiring and firing of executive
officers and bonus and other compensation decisions pertaining to
executive officers;
(iv) the procurement of
equipment;
(v) mergers and acquisitions;
and
(vi) 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.
Until that certain Convertible
Subordinated Note issued by the Company to Interpool, Inc. on
October 1, 2006 in an aggregate principal amount of
$37,500,000 (the “Note”) is paid in full and
terminated, 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 $441,185, 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 four percent (4%) of the
Employee’s then-current Base Salary’.
Notwithstanding the foregoing, if,
during his employment under this Agreement, the Company pays in
full and terminates the Note, the Company shall immediately
increase Employee’s Base Salary to an initial annual rate of
$500,000, payable in twenty-four (24) equal bi-monthly
installments. In addition, following the repayment of the Note, on
January 1 of each subsequent year that this Agreement is in
place, beginning on January 1, 2008, the employee’s Base
Salary shall be increased by at least four percent (4%) of the
Employee’s then-current Base Salary or by such larger amount
as is determined by the Company’s Board of
Directors.
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.
-2-
(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, 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:
(i) If the Note remains outstanding
as of the last day of the applicable Fiscal Year:
|
|
|
|
|
|
Percent of Budgeted Pre-Tax
|
|
Bonus
(as a Percentage of Base Salary)
|
|
|
less than 70%
|
|
0
|
%
|
|
70%
|
|
10
|
%
|
|
80%
|
|
20
|
%
|
|
90%
|
|
30
|
%
|
|
100% and above
|
|
40
|
%
|
(ii) If the Note has been repaid in
full and terminated prior to the last day of the applicable fiscal
year:
|
|
|
|
|
|
Percent of Budgeted Pre-Tax
|
|
Bonus
(as a Percentage of Base Salary)
|
|
|
less than 70%
|
|
0
|
%
|
|
70%
|
|
10
|
%
|
|
80%
|
|
20
|
%
|
|
90%
|
|
30
|
%
|
|
100%
|
|
40
|
%
|
|
110%
|
|
50
|
%
|
|
120%
|
|
60
|
%
|
|
130%
|
|
70
|
%
|
|
140%
|
|
80
|
%
|
|
150%
|
|
90
|
%
|
|
160% and above
|
|
100
|
%
|
-3-
(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, until November 1, 2008. If not
terminated in writing by either party at least ninety (90)
days prior to the end of the applicable term, this Agreement shall
automatically renew for an additional twenty-four (24)
months.
-4-
(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.
(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, 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 is not cured within thirty
(30) days after notice from the Company; or
-5-
(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 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 President and Chief Executive Officer
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, the Employee’s employment is terminated, the
Employee shall be entitled to receive the following:
(a) Company Termination Under
Section 6(b)(iii) or (iv). In the event the
Employee’s employment is terminated by the