EMPLOYMENT AGREEMENT
This Employment Agreement is made and entered into this 26th day of
September, 2000, by and between Look Models International, Inc., a Delaware
Corporation (the "Company"), and Xxxxxxxx Xxxxxxx, an individual ("Employee").
RECITALS
A. The Company desires to be assured of the association and services of
Employee for the Company.
B. Employee is willing and desires to be employed by the Company, and the
Company is willing to employ Employee, upon the terms, covenants and conditions
hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual terms, covenants and
conditions hereinafter set forth, the parties hereto do hereby agree as follows:
1. Employment.
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The Company hereby employs Employee as its President and Chief
ExecutiveOfficer. Specifically, Employee will be in charge of the
day-to-day operations of the Company. Employee shall be based in
Vienna, Austria.
2. Term.
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The term of this Agreement shall be for a period of five (5) years
commencing on the date hereof, unless terminated earlier pursuant to
Section 6 below; provided, however, that Employee's obligations in
Section 4 below shall continue in effect after such termination.
3. Compensation; Reimbursement.
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3.1 Base Salary. For all services rendered by Employee under this
Agreement, the Company shall pay Employee a base salary of three
hundred fifty thousand and 00/100 ($350,00000) Dollars per annum,
payable monthly in equal installments (the "Base Salary").
3.2 Incentive Bonus. In addition to the Base Salary, Employee shall
be eligible for an incentive bonus ("Incentive Bonus") each year.
The Incentive Bonus shall be based upon the operating results for
that year of the Company, and shall be paid, if earned, within 30
days after such operating results have been determined by the
Company's accountants. The incentive bonus shall be paid in the
form of cash , stock and/or stock options. Stock options will be
issued at a strike price of $ 0.50 or the current market price if
lower. exercisable immediately once said stock options become
fully vested, subject to approval of the Shareholders and Board
of Directors of the Company. The said stock options become fully
vested after the Employee has completed one (1) full calendar
year of service to the Company.
3.3 Reimbursement. Employee shall be reimbursed for all reasonable
"out-of-pocket" business expenses for business travel and
business entertainment incurred in connection with the
performance of his or his duties under this Agreement (1) so long
as such expenses constitute business deductions from taxable
income for the Company and are excludable from taxable income to
the Employee under the governing laws and regulations of the
Internal Revenue Code (provided, however, that Employee shall be
entitled to full reimbursement in any case where the Internal
Revenue Service may, under Section 274(n) of the Internal Revenue
Code, disallow to the Company 20% of meals and entertainment
expenses); and (2) to the extent such expenses do not exceed the
amounts allocable for such expenses in budgets that are approved
from time to time by the Company. The reimbursement of Employee's
business expenses shall be upon monthly presentation to and
approval by the Company of valid receipts and other appropriate
documentation for such expenses.
4. Scope of Duties.
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4.1 Assignment of Duties. Employee shall have, in addition to his
regular duties, the duties defined hereunder in Section 4.2; the
Company's Board of Directors may assign such duties as to his
from time to time. Such duties shall be exercised subject to the
control and supervision of the Board of Directors of the Company.
4.2 General Specification of Duties. Employee's duties shall include,
but not be limited to, the duties and performance goals as
follows:
(1) Act as head of the Company and perform all duties, functions
and responsibilities generally associated with the head of
the Company; (2) Execute on behalf of the Company, in his
capacity as President and CEO, all agreements, contracts,
documents and other such matters as needed by the Company in
the ordinary course of business; (3) Employ, pay, supervise
and discharge all employees of the Company's European
offices, which now are located in Vienna, Austria, London,
and Munich, Germany, and to determine all matters with
regard to such personnel, including, without limitation,
compensation, bonuses and fringe benefits; (4) Establish
procedures for implementing the policies established by the
Company; (5) Insure cooperation by the European offices with
other divisions or subsidiaries of the Company; and (6)
Cause the Company to be operated in compliance with all
legal requirements.
The foregoing specifications are not intended as a complete
itemization of the duties, which Employee shall perform and
undertake on behalf of the Company in satisfaction of his
employment obligations under this Agreement.
4.3 Employee's Devotion of Time. Employee hereby agrees to devote his
full time, abilities and energy to the faithful performance of
the duties assigned to him and to the promotion and forwarding of
the business affairs of the Company, and not to divert any
business opportunities from the Company to himself or to any
other person or business entity.
4.4 Conflicting Activities.
(1) Employee shall not, during the term of this Agreement, be
engaged in any other business activity without the prior
consent of the Board of Directors of the Company; provided,
however, that this restriction shall not be construed as
preventing Employee from investing his personal assets in
passive investments in business entities which are not in
competition with the Company or its affiliates, or from
pursuing business opportunities as permitted by paragraph
4.5(b).
(2) Employee hereby agrees to promote and develop all business
opportunities that come to his attention relating to current
or anticipated future business of the Company, in a manner
consistent with the best interests of the Company and with
his duties under this Agreement.
(3) Restrictive Covenant. Employee agrees that so long as he is
employed by the Company and for one (1) years following the
termination of his employment with the Company, he will not,
directly or indirectly, through one or more intermediaries
or Affiliates or otherwise, engage in any employment or
activity or own any business that is in any way competing
with, or preparing to compete with, the Company in the
business or then actively proposed business of the Company,
including promotional merchandising, licensing, manufacture,
purchase or sale of any merchandise related to Company
(collectively, the "Company Business"). To "compete" means
to become a partner, shareholder, officer, director,
employee or consultant of a business, which operates in
competition to the relevant lines of businesses conducted by
Company. If Employee violates this provision, Company shall
be entitled to injunctive relief in addition to, and not in
limitation of, any relief or rights to which Company may be
entitled.
5. Confidentiality of Trade Secrets and Other Materials.
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5.1 Trade Secrets. Other than in the performance of his duties
hereunder, Employee agrees not to disclose, either during the
term of his employment by the Company or for one (1) years
thereafter, to any person, firm or corporation any confidential
and /or proprietary information concerning the business affairs,
the trade secrets or the customer lists or similar information of
the Company or its business and operations, including, without
limitation, technical, financial, marketing, distribution and
promotional information, business plans and strategies, concepts,
pricing, programs and/or procedures and information received by
the Company from third parties under obligations of
confidentiality. . Any technique, method, process or technology
used by the Company shall be considered a "trade secret" for the
purposes of this Agreement. Trade Secrets shall not include
information that has become generally available to the public by
the acts of one who has the right to disclose such information
without violating any right of the Company or which is known to
Employee prior to its disclosure by the Company as evidenced by
Employee's written records.
5.2 Ownership of Trade Secrets; Assignment of Rights. Employee hereby
agrees that all know-how, documents, reports, plans, proposals,
marketing and sales plans, client lists, client files and
materials made by him or by the Company are the property of the
Company and shall not be used by him in any way adverse to the
Company's interests. Employee shall not deliver, reproduce or in
any way allow such documents or things to be delivered or used by
any third party without specific direction or consent of the
Board of Directors of the Company. Employee hereby assigns to the
Company any rights, which he may have in any such trade secret or
proprietary information; provided, however, that such assignment
does not apply to any right, which qualifies fully under the New
York Labor Code.
6. Termination.
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6.1 Bases for Termination.
(1) This Agreement shall automatically terminate on the last day of
the month in which Employee dies or becomes permanently
incapacitated. "Permanent incapacity" as used herein shall mean
mental or physical incapacity, or both, reasonably determined by
the Company's Board of Directors based upon a certification of
such incapacity by, in the discretion of the Company's Board of
Directors, either Employee's regularly attending physician or a
duly licensed physician selected by the Company's Board of
Directors, rendering Employee unable to perform substantially all
of his duties hereunder and which appears reasonably certain to
continue for at least six consecutive months without substantial
improvement. Employee shall be deemed to have "become permanently
incapacitated" on the date the Company's Board of Directors has
determined that Employee is permanently incapacitated and so
notifies Employee.
(2) Employee's employment may be terminated by the Company "with
cause," effective upon delivery of written notice to Employee
given at any time (without any necessity for prior notice) if any
of the following shall occur:
(a) the refusal or gross neglect of the Employee to perform his
responsibilities or duties under this Agreement after the
Employer shall have given the Employee written notice to
that effect (and if the acts or failures to act are curable,
the Employee has failed to do so within one month of written
notice thereof));
(b) any material breach of the terms of this Agreement; or
(c) any material acts or events which inhibit Employee from
fully performing his or his responsibilities to the Company
in good faith, such as (i) a felony criminal conviction;
(ii) any other criminal conviction involving Employee's lack
of honesty or moral turpitude; (iii) drug or alcohol abuse;
or (iv) acts of fraud, dishonesty, gross carelessness or
gross misconduct.
(3) Employee may terminate his employment hereunder by giving the
Company sixty (60) days prior written notice, which termination
shall be effective on the 60th day following such notice.
(4) Employee may terminate his employment hereunder by giving the
Company thirty (30) days prior written notice in the event the
Company is in material breach of its obligations under this
Agreement, and in such instance, the restrictive covenant
contained in Section 4.4(3) shall not be applicable.
(5) Employee may terminate his employment hereunder upon twenty (20)
days notice if $5,000,000 equity is not raised or obtained by the
Company from investors or other financing sources within nine (9)
months from the date hereof, and in such instance, the
restrictive covenant contained in Section 4.4(3) shall not be
applicable.
6.2 Payment Upon Termination. Upon termination under paragraphs
6.1(1), (2), or (3), the Company shall have no other obligation
than to pay to Employee within 10 days after termination an
amount equal to the sum of (1) Employee's Base Salary accrued to
the date of termination; and (2) reimbursement for expenses
incurred in accordance with paragraph 3.3,but not yet reimbursed.
6.3 Severance Provisions. The provisions of Sections 6.1 and 6.2
shall be subject to and deemed modified to the benefit of the
Employee by the terms of any severance benefits granted to
Employee as may be agreed upon by the Company at its sole
discretion
7. Injunctive Relief. The Company and Employee hereby acknowledge
and agree that any default under Section 5 above will cause
damage to the Company in an amount difficult to ascertain.
Accordingly, in addition to any other relief to which the Company
may be entitled, the Company shall be entitled to such injunctive
relief as may be ordered by any court of competent jurisdiction
including, but not limited to, an injunction restraining any
violation of Section 6 above and without the proof of actual
damages.
8. Miscellaneous. -------------
8.1 Transfer and Assignment. This Agreement is personal as to
Employee and shall not be assigned or transferred by Employee
without the prior written consent of the Company. This Agreement
shall be binding upon and inure to the benefit of all of the
parties hereto and their respective permitted heirs, personal
representatives, successors and assigns.
8.2 Severability. Nothing contained herein shall be construed to
require the commission of any act contrary to law. Should there
be any conflict between any provisions hereof and any present or
future statute, law, ordinance, regulation, or other
pronouncement having the force of law, the latter shall prevail,
but the provision of this Agreement affected thereby shall be
curtailed and limited only to the extent necessary to bring it
within the requirements of the law, and the remaining provisions
of this Agreement shall remain in full force and effect.
8.3 Governing Law. All questions concerning the construction,
validity, and interpretation of this Agreement and the
performance of the obligations imposed by this Agreement shall be
governed by the internal law, not the law of conflicts, of the
State of New York.
8.4 Counterparts. This Agreement may be executed in several counter
parts and all documents so executed shall constitute one
agreement, binding on all of the parties hereto, notwithstanding
that all of the parties did not sign the original or the same
counterparts.
8.5 Entire Agreement. This Agreement constitutes the entire agreement
and understanding of the parties with respect to the subject
matter hereof and supersedes all prior oral or written
agreements, arrangements, and understandings with respect
thereto. No representation, promise, inducement, statement or
intention has been made by any party hereto that is not embodied
herein, and no party shall be bound by or liable for any alleged
representation, promise, inducement, or statement not so set
forth herein.
8.6 Modification. This Agreement may be modified, amended,
superseded, or cancelled, and any of the terms, covenants,
representations, warranties or conditions hereof may be waived,
only by a written instrument executed by the party or parties to
be bound by any such modification, amendment, supersession,
cancellation, or waiver.
8.7 Attorneys' Fees and Costs. In the event of any dispute arising
out of the subject matter of this Agreement, the prevailing party
shall recover, in addition to any other damages assessed, its
attorneys' fees and court costs incurred in litigating or
otherwise settling or resolving such dispute whether or not an
action is brought or prosecuted to judgment. In construing this
Agreement, none of the parties hereto shall have any term or
provision construed against such party solely by reason of such
party having drafted the same.
8.8 Waiver. The waiver by either of the parties, express or implied,
of any right under this Agreement or any failure to perform under
this Agreement by the other party, shall not constitute or be
deemed as a waiver of any other right under this Agreement or of
any other failure to perform under this Agreement by the other
party, whether of a similar or dissimilar nature.
8.9 Cumulative Remedies. Each and all of the several rights and
remedies provided in this Agreement, or by law or in equity,
shall be cumulative, and no one of them shall be exclusive of any
other right or remedy, and the exercise of any one of such rights
or remedies shall not be deemed a waiver of, or an election to
exercise, any other such right or remedy.
8.10 Headings. The section and other headings contained in this
Agreement are for reference purposes only and shall not in any
way affect the meaning and interpretation of this Agreement.
8.11 Notices. Any notice under this Agreement must be in writing, may
be telecopied, sent by express 24-hour guaranteed courier, or
hand-delivered, or may be served by depositing the same in the
United States mail, addressed to the party to be notified,
postage-prepaid and registered or certified with a return receipt
requested. The addresses of the parties for the receipt of notice
shall be as follows:
If to the Company:
Human Resources Coordinator
Look Models International, Inc.
Xxxxxxxxxxxxx 0
Xxxxxx Xxxxxxx 0000
With a copy to:
Xxxxxx X. Xxxxxxxxxxx, Esq.
Xxxxxxxxxxx & Xxxxxxxxxxx, PLLC
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
If to Employee:
Xxxxxxxx Xxxxxxx
Look Models International, Inc.
Xxxxxxxxxxxxx 0
Xxxxxx Xxxxxxx 0000
With a copy to:
Xxxxxxxx X. Xxxx, Esq.
Xxxxxxx Xxxxxx & Fein LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Each notice given by registered or certified mail shall be deemed
delivered and effective on the date of delivery as shown on the
return receipt, and each notice delivered in any other manner
shall be deemed to be effective as of the time of actual delivery
thereof. Each party may change its address for notice by giving
notice thereof in the manner provided above.
8.12 Survival. Any provision of this Agreement, which imposes an
obligation after termination, or expiration of this Agreement
shall survive the termination or expiration of this Agreement and
be binding on Employee and the Company.
8.13 Right of Set-Off. Upon termination or expiration of this
Agreement, the Company shall have the right to set-off against
the amounts due Employee hereunder the amount of any outstanding
loan or advance from the Company to Employee.
8.14 Joint Jurisdiction and Venue. Any suit involving any dispute or
matter arising under this Agreement may only be brought in a
United States District Court located in the State of New York or
any New York New York State Court having jurisdiction over the
subject matter of the dispute or matter or in Vienna, Austria.
The Company and Employee hereby consent to the exercise of
personal jurisdiction by any such court with respect to any such
proceeding.
8.15 Effective Date. This Agreement shall become effective as of the
date set forth on page 1 when signed by Employee and the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Employment
Agreement to be executed as of the date first set forth above.
"Employee"
Xxxxxxxx Xxxxxxx
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"Company"
Look Models International, Inc.
By: ____________
Its:_____________
