EMPLOYMENT AGREEMENT
This
EMPLOYMENT AGREEMENT
(the “Agreement”) is dated
as of November 30, 2010 (the “Effective Date”) by
and between AMERICA’S
SUPPLIERS, INC., a Delaware corporation (the “Company”), and XXXXXXX XXXXX (the “Executive”).
WHEREAS, as of the Effective
Date, the Company desires to employ the Executive and to enter into an agreement
embodying the terms of such employment and the Executive desires to accept such
employment and enter into such an agreement on the terms and conditions
contained herein.
NOW, THEREFORE, in
consideration of the premises and mutual covenants herein and for other good and
valuable consideration, the parties agree as follows:
1. Term of
Employment. Subject to the provisions of Section 5 of this
Agreement, the Executive shall be employed by the Company for a period
commencing on the Effective Date and ending on December 31, 2012 (the “Term”). The Term may be renewed
in accordance with a writing executed by both parties hereto.
2.
Position.
(a) Duties. The
principal duties of the Executive shall be to serve in the positions of Chief
Financial Officer and Secretary of Dollardays International, Inc., a
wholly-owned subsidiary of the Company (“Dollardays”) and
Chief Financial Officer and Secretary of Wow My Universe, Inc., a wholly-owned
subsidiary of the Company (“Wow”). The
Executive shall have the duties and responsibilities delegated to him by the
Board of Directors of the Company (the “Board”), which shall
be consistent with those duties and responsibilities normally associated with
such positions in corporations of similar size and nature to Dollardays and Wow,
and to render such other services as are reasonably necessary or desirable to
protect and advance the best interests of the Company.
(b) Devotion of Time to
Business. The Executive shall use his best efforts, skill and
abilities to promote and protect the interests of the Company, Dollardays and
Wow, and devote all of his working time and energies to the business and affairs
of Dollardays and Wow. Notwithstanding anything to the contrary
contained herein, the Executive (i) may serve on the boards of additional
companies or organizations and receive compensation for such services rendered;
and (ii) may engage in charitable, civic, fraternal, professional and trade
association activities, provided, however, that in each
such case, the Board shall approve the activities engaged in by the Executive,
such activities do not materially interfere with his obligations to the Company,
Dollardays and Wow and such activities do not materially reduce the amount of
his working time devoted to the business and affairs of the Company, Dollardays
and Wow.
(c) Directors and Officers
Liability Insurance. The Executive shall be entitled to the
benefit of any directors and officers insurance coverage which is maintained by
the Company and/or Dollardays and Wow and made available to senior executives of
the Company or Dollardays or Wow, as applicable.
3. Compensation and
Benefits.
(a)
Base
Salary. The Executive shall be paid a base salary during the
Term, in consideration for his services provided to the Company, Dollardays and
Wow, at the rate of $10,000 per month, payable in equal installments every two
weeks of each month (“Base Salary”).
(b) Bonus. In
addition to the Base Salary, in the event DollarDays achieves 100% of the
performance milestones established and approved by the Board each calendar year
(the “Performance
Milestones”), the Executive shall receive an additional $5,000 cash
compensation.
(c) Additional
Compensation. In addition to the Base Salary and Bonus payable
to the Executive hereunder and any other compensation payable to the Executive
hereunder, the Executive also shall be entitled to receive additional
compensation, in consideration for his services provided to the Company,
Dollardays and Wow, at such times and in such amounts as shall be determined in
the sole discretion of the Board, as applicable, or any committee of the Board
which determines such compensation. The Board shall conduct a review
not less than once each year, and such additional compensation, if any, shall be
based on, among other things, the Executive’s and the Company’s
performance.
(d)
Stock Options,
Restricted Stock Awards, etc. In addition to the other
compensation payable to the Executive hereunder, the Executive shall also be
entitled to receive grants of stock options, restricted stock and/or any other
equity incentive awards available to senior executives of the Company, under
equity incentive plans adopted by the Company, at such times and in such amounts
as shall be determined in the sole discretion of the Board or any committee of
the Board which determines such equity grants.
(e) Withholding. All salaries, bonuses and
other benefits payable to the Executive shall be subject to payroll and
withholding taxes as may be required by law. The Executive shall be
responsible to pay any income taxes with respect to the Company’s provision of
benefits payable or made available to the Executive
hereunder.
4.
Employee Benefits; Business
Expenses.
(a) Employee
Benefits. During the Term, the Executive and his dependents
shall be entitled to participate in Dollardays’ welfare benefit plans, fringe
benefit plans and any qualified or non-qualified retirement plans as in effect
from time to time (collectively, the “Employee Benefits”),
on the same basis as those benefits are made available to the other senior
executives of Dollardays, in accordance with Dollardays’ policies as in effect
from time to time.
(b) Perquisites. During
the Term, the Executive shall be entitled to receive such perquisites as are
made available to other senior executives of Dollardays or Wow in accordance
with Dollardays’ policies as in effect from time to time.
(c) Expenses. The
Executive shall be entitled to reimbursement for reasonable and necessary
business expenses incurred by him in the performance of his duties and
responsibilities hereunder, in accordance with Dollardays’ and Wow’s
reimbursement and expenses policies, as in effect from time to
time.
2
5.
Termination.
(a) Definitions. For
purposes of this Agreement:
“Cause” shall mean (i)
the Executive’s negligence or misconduct in the performance of his material
duties with respect to the Company or Dollardays or Wow, as provided hereunder,
(ii) the conviction by the Executive of a crime constituting a felony or (iii) the Executive shall
have committed any material act of malfeasance, disloyalty, dishonesty or breach
of trust against the Company or Dollardays or Wow.
“Change in Control”
shall mean the occurrence of one or more of the following events:
(i) Any
"person" (as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") acquires or becomes a
"beneficial owner" (as defined in Rule 13d-3 or any successor rule under the
Exchange Act), directly or indirectly, of securities of the Company representing
50% or more of the combined voting power of the Company’s then outstanding
securities entitled to vote generally in the election of directors ("Voting
Securities"), provided, however, that the following shall not constitute a
Change in Control pursuant to this Section:
(A) any acquisition or
beneficial ownership by the Company or a subsidiary;
(B) any
acquisition or beneficial ownership by any employee benefit plan (or related
trust) sponsored or maintained by the Company or one or more of its
subsidiaries;
(C) any
acquisition or beneficial ownership by any corporation with respect
to which, immediately following such acquisition, more than 50% of both the
combined voting power of the Company’s then outstanding Voting Securities and
shares of the Company’s Common Stock (the "Shares) is then beneficially owned,
directly or indirectly, by all or substantially all of the persons who
beneficially owned Voting Securities and Shares of the Company immediately prior
to such acquisitions in substantially the same proportions as their ownership of
such Voting Securities and Shares, as the case may be, immediately prior to such
acquisitions; or
(ii) A
majority of the members of the Board of Directors of the Company shall not be
Continuing Directors. "Continuing Directors" shall mean: (A)
individuals who, on the date hereof, are directors of the Company, (B)
individuals elected as directors of the Company subsequent to the date hereof
for whose election proxies shall have been solicited by the Board or (C) any
individual elected or appointed by the Board to fill vacancies on the Board
caused by death or resignation (but not by removal) or to fill newly-created
directorships;
3
(iii) Approval
by the stockholders of the Company of a reorganization, merger or consolidation
of the Company or a statutory exchange of outstanding Voting Securities, unless,
immediately following such reorganization, merger, consolidation or exchange,
all or substantially all of the persons who were the beneficial owners,
respectively, of Voting Securities and Shares immediately prior to such
reorganization, merger, consolidation or exchange beneficially own, directly or
indirectly, more than 50% of, respectively, the combined voting power of the
then outstanding voting securities entitled to vote generally in the election of
directors and the then outstanding shares of common stock, as the case may be,
of the corporation resulting from such reorganization, merger, consolidation or
exchange in substantially the same proportions as their ownership, immediately
prior to such reorganization, merger, consolidation or exchange, of the Voting
Securities and Shares of the Company, as the case may be; or
(iv) Approval
by the stockholders of the Company of (A) a complete liquidation or dissolution
of the Company or (B) the sale or other disposition of all or substantially all
of the assets of the Company (in one or a series of transactions), other than to
a corporation with respect to which, immediately following such sale or other
disposition, more than 50% of, respectively, the combined voting power of the
then outstanding voting securities of such corporation entitled to vote
generally in the election of directors and the then outstanding shares of common
stock of such corporation is then beneficially owned, directly or indirectly, by
all or substantially all of the persons who were the beneficial owners,
respectively, of the Voting Securities and Shares immediately prior to such sale
or other disposition in substantially the same proportions as their ownership,
immediately prior to such sale or other disposition, of the Voting Securities
and Shares, as the case may be.
“Date of Termination”
shall mean the date the Notice of Termination is given to the respective party;
provided, however, that with
respect to a termination for Cause by the Company or Dollardays or Wow, the Date
of Termination shall not occur prior to the expiration of any applicable cure
period.
“Disability” shall
mean the Executive has become physically or mentally incapacitated and is
therefore unable for a period of two (2) consecutive months to perform
substantially all of the material elements of his duties
hereunder. Any question as to whether the Executive has a Disability
as to which he (or his legal representative) and Dollardays or Wow cannot agree
shall be determined in writing by a qualified independent physician mutually
acceptable to the Executive (or his legal representative) and Dollardays or
Wow. If the Executive (or his legal representative) and Dollardays or
Wow cannot agree as to a qualified independent physician, each shall appoint
such a physician and those two physicians shall select a third who shall make
such determination in writing. The determination of whether the
Executive has a Disability made in writing to Dollardays or Wow and the
Executive shall be final and conclusive for all purposes of this
Agreement.
“Good Reason” shall
mean (i) a breach by the Company or Dollardays or Wow of any of its material
obligations or covenants set forth in this Agreement, (ii) a material reduction
of the duties or responsibilities of the Executive, (iii) the assignment to the
Executive of any duties or responsibilities that are inconsistent, in any
significant respect, with his position.
“Notice of
Termination” shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of employment under the provision so indicated, and shall be
communicated, in writing, to the other party hereto in accordance with the
provisions of Section
10(g) hereafter.
4
(b)
By the Company for
Cause or by the Executive Without Good Reason.
(i) The
Term and the Executive’s employment hereunder may be terminated by the Company,
Dollardays or Wow for Cause, immediately upon the delivery of a Notice of
Termination by the Company to the Executive and shall terminate automatically
upon the Executive’s resignation (other than for Good Reason or due to the
Executive’s death or Disability).
(ii) If
the Executive’s employment is terminated for Cause, or if the Executive resigns
other than for Good Reason, the Executive shall be entitled to
receive:
(A) any
accrued but unpaid Base Salary through the Date of Termination;
(B) reimbursement
for any unreimbursed business expenses incurred by the Executive in accordance
with Dollardays’ or Wow’s policy prior to the Date of Termination (with such
reimbursements to be paid promptly after the Executive provides the Company with
the necessary documentation of such expenses to the extent required by such
policy); and
(C) such
Employee Benefits, if any, as to which he may be entitled upon termination of
employment hereunder (including under the applicable provisions of Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended).
Following
the Executive’s termination of employment for Cause or if he resigns other than
for Good Reason, except as set forth above or as required by applicable law, the
Executive shall have no further rights to any compensation or any other benefits
under this Agreement.
(c) Death or
Disability. The Executive’s employment hereunder shall
terminate upon the Executive’s death and may be terminated, within ten (10) days
after the delivery of a Notice of Termination by the Company, Dollardays or Wow
to the Executive (or his legal representative) in the event of the Executive’s
Disability. Upon termination of the Executive’s employment hereunder
for either Disability or death, the Executive shall be entitled to receive the
same payments and other items as set forth in clause (ii) of Section 5(b) hereof
and, in addition, accrued but unpaid vacation time, if any. Following
the Executive’s termination of employment due to death or Disability, except as
set forth herein or as required by applicable law, the Executive shall have no
further rights to any compensation or any other benefits under this
Agreement.
(d) Termination By Company with
Notice. The Company, Dollardays or Wow may terminate this
Agreement for any reason or no reason immediately upon written notice to the
other. In case of termination for any reason, the Company shall pay
Executive severance compensation in the amount of nine (9) month’s Base Salary
without incentives.
(e) Payment of Amounts Owed upon
Termination of Employment. Any amounts payable to the
Executive for accrued but unpaid Base Salary through the Date of Termination
shall be paid within ten (10) business days after the Date of
Termination.
5
(f) Change in
Control. In the event of a Change in Control of the Company,
and the Executive is terminated, with or without Cause, as a result of such
Change in Control, the Executive may be entitled to receive additional
compensation upon termination, at such time and in such amount as shall be
determined in the sole discretion of the Board, as applicable, or any committee
of the Board which determines such compensation.
6.
Restrictive Covenants.
(a) Non-solicitation. The
Executive agrees that during the Term and for a period of twelve months (12)
months thereafter,
he will not, directly or indirectly including through any other person or entity
(i) solicit, raid, entice or induce any person or entity who is at such time or
was within six (6) months prior to such date, a client or customer of the
Company or Dollardays or Wow to become a customer for, the same or similar
services or products which it received or purchased from the Company or
Dollardays or Wow, for himself or any other person or entity, (ii) approach any
such person or entity for such purpose or authorize or knowingly approve the
taking of such actions by any other person or entity for any other person or
entity, (iii) influence or attempt to influence any client or customer of the
Company or Dollardays or Wow to divert its business or patronage from the
Company or Dollardays or Wow to any other person, (iv) make any statement or do
any act intended to cause existing or potential clients or customers of the
Company or Dollardays or Wow to make use of the services or purchase the
products of any competitive business or (v) hire, solicit, raid, entice or
induce or attempt to induce any employee of the Company or Dollardays or Wow to
be employed by any other person or entity.
(b) Non-competition. During
Executive's employment hereunder and, in the event Executive’s employment is
terminated for any reason, for a period of twelve (12) months thereafter without
the prior written consent of the Company, Executive shall not directly or
indirectly engage in a Competitive Business in any country in which the Company
or Dollardays or Wow conducts business. For the purpose of this
Agreement “Competitive Business” means any business involved in (i) the
development of software programs, (ii) the provision of general merchandise for
resale to businesses through websites, (iii) the Internet wholesale market of
discounted merchandise, (iv) the provision of a one-stop discount shopping
destination for general merchandise for smaller distributors, retailers and
non-profits nationwide seeking single and small cased-sized lots at bulk prices,
(v) the provision of related logistics and customer support and/or (vi) any
additional business conducted by the Company and/or Dollardays and/or Wow, in
the future. Notwithstanding the foregoing, the Executive may acquire
securities in Competitive Businesses that are publicly-held companies that will
not be significant and that, in any event, will not exceed two percent (2%) of
any outstanding class of equity of any such company
6
(c) Confidential
Information.
(i) Agreement to Preserve
Confidentiality.
The Executive shall maintain in confidence and shall not, either during the Term
or at any time after his employment hereunder, except as permitted under the
terms of this Agreement or as otherwise agreed to by Company, communicate or
disclose to, or use for the benefit of the Executive or any other person or
entity, any proprietary or confidential information, trade secret or know-how
belonging to Company or Dollardays or Wow (collectively, the "Confidential
Information"), whether or not such Confidential Information is in written
or permanent form, except to the extent required to perform his duties described
in this Agreement. Such Confidential Information includes, but is not
limited to, all business information, trade secrets, information about products,
processes and services, technological information, intellectual property,
confidential records, pricing information, accounting, merchandising, or
marketing information, sales techniques, client, customer or manufacturer lists,
information about client requirements, terms of contracts with suppliers and
clients, internal business procedures, business methods used or developed by or
for the Company or Dollardays or Wow, computer codes, hardware system
information, planning and financial information, product development plans,
marketing plans and future business plans, and Confidential Information of
customers or other third parties that has been disclosed to the Company or
Dollardays or Wow in confidence. Notwithstanding the foregoing, the
term Confidential Information shall not include any information that (i) is or
becomes in the public domain, including information that is publicly known or
generally utilized by others engaged in the same business as the Company or
Dollardays or Wow, other than as a result of a disclosure in violation of this
Agreement; (ii) is known by the Executive prior to his employment with the
Company, Dollardays or Wow or is developed by Executive outside the scope of his
duties, on behalf of the Company or Dollardays or Wow, without using any
Confidential Information; or (iii) is required to be disclosed by the Executive
by law, provided that the Executive shall provide the Company with prompt
written notice of any such requirement so that the Company may seek a protective
order or other appropriate remedy, if it so chooses. In the event
that such protective order or other remedy is not obtained, or the Company
chooses not to seek such relief, the Executive agrees to furnish only that
portion of the Confidential Information which the Executive is advised by
written opinion of counsel is legally required to be disclosed and the Executive
agrees to exercise his best efforts to obtain assurance that confidential
treatment will be accorded such Confidential Information. The
foregoing obligations with respect to the Confidential Information extends to
information belonging to customers and suppliers of the Company and Dollardays
and Wow who may have disclosed such information to the Company or Dollardays or
Wow or the Executive as a result of the Executive’s status as an employee of the
Company. In addition to the foregoing, unless the Executive receives
permission from the Company to do so, he will not: (i) remove any
Confidential Information from the premises of the Company or Dollardays or Wow;
(ii) copy or reverse engineer any Confidential Information; or
(iii) keep any Confidential Information in his possession.
(ii) Return of
Property. Upon the termination of the Executive’s employment,
or at any time when so requested by the Company, the Executive agrees to
promptly return all documents of the Company and Dollardays and Wow and any
other property in the Executive’s possession or control belonging to Company or
Dollardays or Wow, and any other materials containing Confidential Information,
including all copies of same, and records, notes, compilations or other matter
relating thereto.
(d) Ownership of Product Ideas
and Assignment.
(i) Product
Ideas. The Executive will maintain current and adequate
written records on the development of, and disclose to Company, all Product
Ideas. “Product Ideas” shall
mean all ideas, potential marketing and sales relationships, inventions,
copyrightable expressions, research, plans for products or services, marketing
plans, original works of authorship, know-how, trade secrets, information, data,
developments, discoveries, improvements, modifications, technology and designs,
whether or not eligible for patent or copyright protection, made, conceived,
expressed, developed, or actually or constructively reduced to practice by the
Executive solely or jointly with others during the Term and which can reasonably
be used by the Company or Dollardays or Wow in furtherance of their then-current
business.
7
(ii) Ownership of
Product Ideas and Assignment. The Executive acknowledges
and agrees that the Product Ideas and any resulting patents or trademarks shall
be the exclusive property of the Company, Dollardays and Wow, and that all of
said Product Ideas shall be considered as "work made for hire" belonging to the
Company, Dollardays and Wow. To the extent any such Product Ideas,
under applicable law, may not be considered work made for hire by the Executive
for the Company, Dollardays and Wow, the Executive hereby assigns and, upon its
creation, automatically and irrevocably assigns to the Company, Dollardays and
Wow, without any further consideration, all right, title and interest in and to
such Product Ideas, including, without limitation, any copyright, other
intellectual property rights, all contract and licensing rights, and all claims
and causes of action of any kind with respect to such materials. The
Company, Dollardays and Wow shall have the exclusive right to use the Product
Ideas, whether original or derivative, for all purposes without additional
compensation to the Executive. At the Company’s, Dollardays’ and
Wow’s expense, the Executive will assist the Company, Dollardays and Wow in
every proper way to perfect the Company’s, Dollardays’ and Wow’s rights in the
Product Ideas and to protect the Product Ideas throughout the world, including,
without limitation, promptly executing and delivering such patent, copyright,
trademark or other applications, assignments, descriptions and other instruments
and to take such actions for and on behalf of the Executive as may be
reasonably, necessary, or proper in the reasonable opinion of the Company,
Dollardays and Wow to vest title to and/or defend or enforce the rights of the
Company, Dollardays and Wow in the Product Ideas.
(e) Scope. In
the event any of the provisions of this Section 6 shall be
adjudicated to exceed the time, geographic or other limitations permitted by
applicable law in any jurisdiction, then such provision shall be deemed reformed
in any such jurisdiction to the maximum time, geographic or other limitations
permitted by applicable law.
(f) Injunctive
Relief. Without intending to limit the remedies available to
the Company, Dollardays and
Wow, the Executive agrees that damages at law will be an insufficient
remedy in the event the Executive violates any of the terms of this Section 6, and that
the Company, Dollardays and
Wow may apply for and obtain immediate injunctive relief in any court of
competent jurisdiction to restrain the breach or threatened breach of, or
otherwise to specifically enforce, any of the agreements and covenants contained
herein, without the requirement of having to post bond. The parties
hereto understand that each of the agreements and covenants of the Executive
contained in those sections are an essential element of this Agreement and agree
that the obligations of the Executive hereunder will survive the termination of
this Agreement.
8
7. Representations, Warranties,
Covenants and Indemnification.
(a) Company.
(i) The
Company is not a party to any existing agreement which would preclude or prevent
it from entering into this Agreement with the Executive.
(ii) The
Company has the full legal right, power and authority to enter into this
Agreement with the Executive and has obtained all necessary approvals from third
parties, to the extent required.
(b) Executive.
(i) The
Executive is not a party to any existing agreement which would preclude or
prevent him from entering into this Agreement with the Company.
(ii) The
Executive will not use any Product Ideas, the rights to which are owned by any
former employer of the Executive or other person from whom the Executive has not
obtained all required rights, and all Product Ideas developed by the Executive
while employed with the Company,
Dollardays and Wow shall be original to the Executive or developed in
corroboration with other employees of the Company, Dollardays and Wow, and shall
not infringe upon the intellectual property rights of any third
party.
8.
Indemnification.
(a) By the
Executive. The Executive agrees to indemnify and hold the
Company and Dollardays, and Wow, and each of their respective officers,
directors, employees, agents and representatives harmless from and against any
losses, claims, damages, liabilities, settlement costs and expenses including,
without limitation, reasonable attorneys’ fees relating to any action or claim
arising from Executive’s breach of any of his representations and warranties
contained herein or the Executive’s acceptance of employment with the
Company, Dollardays and
Wow.
9
(b) By the
Company.
(i) The
Company agrees to indemnify and hold the Executive harmless from and against any
losses, claims, damages, liabilities, settlement costs and expenses including,
without limitation, reasonable attorneys’ fees relating to any action or claim
arising from the Company’s breach of any of its representations and warranties
contained herein.
(ii) The
Company hereby agrees to indemnify and hold the Executive harmless from and
against any losses, claims, damages, liabilities, settlement costs and expenses
including, without limitation, reasonable attorneys’ fees relating to any action
or claim by reason of the fact that he is or was a director, officer or employee
of the Company or Dollardays or Wow, or is or was serving at the request of the
Company or Dollardays or Wow as a director, officer, manager, employee or agent
of another corporation, limited liability company, partnership, joint venture,
trust or other enterprises, to the fullest extent permitted under Delaware law,
as the same exists or may hereafter be amended; and the Company
further covenants and agrees that it shall, unless not permitted under Delaware
law, advance all attorneys’ fees and costs associated with the indemnification
of the Executive in connection with any such action or proceeding.
9. Arbitration. Except
with respect to the restrictive covenants referenced in Section 6 hereof, any
other dispute arising out of or asserting breach of this Agreement, or any
statutory or common law claim by the Executive relating to his employment under
this Agreement or the termination thereof (including any tort or discrimination
claim), shall be exclusively resolved by binding statutory arbitration in
accordance with the Employment Dispute Resolution Rules of the American
Arbitration Association. Such arbitration process shall take place in
Scottsdale, Arizona. A court of competent jurisdiction may enter
judgment upon the arbitrator’s award. Each party shall pay the costs
and expenses of arbitration (including fees and disbursements of counsel)
incurred by such party in connection with any dispute arising out of or
asserting breach of this Agreement.
10. Miscellaneous.
(a) Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to conflicts
of laws principles thereof.
(b) Entire
Agreement/Amendments. This Agreement contains the entire
understanding of the parties with respect to the employment of the Executive by
the Company, Dollardays and
Wow. There are no restrictions, agreements, promises,
warranties, covenants or undertakings between the parties with respect to the
subject matter herein other than those expressly set forth
herein. This Agreement may not be altered, modified, or amended
except by written instrument signed by the parties hereto.
(c) No
Waiver. No waiver of any of the provisions of this Agreement,
whether by conduct or otherwise, in any one or more instances, shall be deemed
or be construed as a further, continuing or subsequent waiver of any such
provision or as a waiver of any other provision of this Agreement. No
failure to exercise and no delay in exercising any right, remedy or power
hereunder will preclude any other or further exercise of any other right, remedy
or power provided herein or by law or in equity.
10
(d) Severability. In
the event any one or more of the provisions of this Agreement shall be or become
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions of this Agreement shall not be
affected thereby.
(e) Assignment. This
Agreement, and all of the Executive’s rights and duties hereunder, shall not be
assignable or delegable by the Executive; provided,
however, that if the
Executive shall die, all amounts then payable to the Executive hereunder shall
be paid in accordance with the terms of this Agreement to the Executive’s
devisee, legatee or other designee or, if there be no such devisee, legatee or
designee, to his estate. This Agreement may be assigned by the
Company to a person or entity which is an affiliate including, without
limitation, Dollardays and/or Wow, and shall be assigned to any successor in
interest to substantially all of the business operations of the
Company. Upon such assignment, the rights and obligations of the
Company hereunder shall become the rights and obligations of such affiliate or
successor person or entity. Further, the Company will
require any successor (whether, direct or indirect, by purchase, merger,
consolidation, or otherwise) to all or substantially all of the business and/or
assets of the Company to assume expressly and agree to perform this Agreement in
the same manner and to the same extent the Company would be required to perform
it if no such succession had taken place. As used in this Agreement,
“Company” shall
mean the Company as defined above and any successor to its business and/or
assets which assumes and agrees to perform this Agreement by operation of law,
or otherwise.
(f) Notices. For
the purpose of this Agreement, notices and all other communications provided for
in the Agreement shall be in writing and shall be deemed to have been duly given
when delivered by hand or internationally recognized courier service addressed
to the respective addresses set forth below in this Agreement, or to such other
address as either party may have furnished to the other in writing in accordance
herewith, except that notice of change of address shall be effective only upon
receipt.
If to the
Company:
America’s Suppliers, Inc.
0000 X. Xxxxxxxx
Xxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx
Xxxxx
Fax: (000) 000-0000
E-mail:
xxxxxx@xxxxxxxxxx.xxx
With a copy to:
Ellenoff Xxxxxxxx & Schole
LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx,
Esq.
Fax: (000) 000-0000
E-mail:
xxxxxxxxxx@xxxxxx.xxx
11
If to the
Executive:
To the
most recent address of the Executive set forth in the personnel records of the
Company.
(h) Prior
Agreements. This Agreement supersedes all prior agreements and
understandings (including verbal agreements) between the Executive and the
Company, Dollardays and Wow
regarding the terms and conditions of the Executive’s employment with the
Company, Dollardays and
Wow.
(i) Cooperation. The
Executive shall provide his reasonable cooperation in connection with any action
or proceeding (or any appeal from any action or proceeding) which relates to
events occurring during the Executive’s employment hereunder, but only to the
extent the Company requests such cooperation with reasonable advance notice to
the Executive and in respect of such periods of time as shall not unreasonably
interfere with the Executive’s ability to perform his duties with any subsequent
employer; provided, however, the Company shall pay any reasonable travel,
lodging and related expenses that the Executive may incur in connection with
providing all such cooperation, to the extent approved by the Company prior to
incurring such expenses.
(j) Execution
and Counterparts. This Agreement may be
executed in two or more counterparts, all of which when taken together shall be
considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other party, it
being understood that the parties need not sign the same
counterpart. In the event that any signature is delivered by
facsimile transmission or by e-mail delivery of a “.pdf” format data file, such
signature shall create a valid and binding obligation of the party executing (or
on whose behalf such signature is executed) with the same force and effect as if
such facsimile or “.pdf” signature page were an original
thereof.
(k) Fees and
Expenses. In the event the Company shall fail or refuse to
make or authorize any payment of any amount otherwise due to the Executive
hereunder within the appropriate period of time, then the Company shall
reimburse the Executive for all reasonable expenses (including reasonable
counsel fees) incurred by him in enforcing the terms hereof, within five (5)
business days after demand accompanied by evidence of fees and expenses
incurred. Any reimbursement hereunder shall be paid to the Executive
promptly and in no event later than the end of his taxable year next following
the taxable year in which the expense was incurred.
[Signature
Page Follows]
12
IN WITNESS WHEREOF, the
parties hereto have duly executed this Agreement as of the day and year first
above written.
|
AMERICA’S
SUPPLIERS, INC.
|
||
|
By:
|
/s/
Xxxxx Xxxxx
|
|
|
Name:
Xxxxx Xxxxx
|
||
|
Title: Chairman
of the Board
|
||
|
/s/
Xxxxxxx Xxxxx
|
||
|
XXXXXXX
XXXXX
|
||
13
