EXHBIT 10.1 EMPLOYMENT AGREEMENT
EXHBIT 10.1
This Agreement is entered into by Chocolate Candy
Creations, Inc., a Delaware corporation,
(“Employer”, or
“Company”
) and Xxxxxx Xxxxx,
00 Xxxxxx Xxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx, 00000, (“Employee”) as of this
6th
of November 2006.
1. Employment. Employer agrees to employ Employee
and Employee agrees to accept employment upon the terms and conditions set forth in
this Agreement.
2. Duties and Services. During the term of this
Agreement, Employee shall be employed in the business of the Employer as its President
and Chief Executive Officer to supervise Employer's business. In the performance of
these duties, Employee shall report to and be subject to the direction of the
Employer's Board of Directors, and Employee agrees to comply with the policies,
standards and regulations of Employer. Employee shall devote such amount of her working
time to the performance of her duties under this Agreement as Employer and Employee
shall determine is necessary for the performance of her duties hereunder, provided
however that, she may not engage in any activity
which is competitive with the business of the Company, as provided in Section 10
hereof.
3. Term. The term of this Agreement shall
commence on the date hereof ("Effective Date") and continue for twelve (12) months (the
"Initial Term") unless terminated earlier or extended as herein provided (the
"Term"). This Agreement shall be extended from
year-to-year after the Initial Term unless either Employer or Employee provides written
notice to the other of its or her intention not to extend this Agreement not later than
ninety (90) days prior to the expiration of the then current Term.
4. Compensation. As compensation for her services
hereunder, Employee shall be entitled
to receive (i) fifty
(50%) percent of the “gross margin”
(i.e. net revenues (after returns) less cost of
goods sold) less (ii) any commissions or finder’s fees paid by the Company or any
compensation paid by the Company to any sales employee or independent contractor
of the Company, as confirmed by the Company’s
independent public accountants. Such compensation shall be paid quarterly in arrears
within five (5) business days after confirmation of such quarter’s financial
statements by such accountants. In addition, in
the event that Employee first introduces to Employer a company with which Employer
effects a merger or acquisition, the Employer shall issue to Employee a five-year
warrant (the “Warrant”) to purchase 200,000 shares of Employer’s
common stock at an exercise price of $1.00 per share
upon the closing of such merger or acquisition. Employer
shall not have any obligation to consummate any such merger or acquisition.
5. Expenses.
Employee shall be entitled to prompt reimbursement for
all reasonable out-of-pocket business expenses necessarily incurred in the performance
of her duties hereunder. Employee's claims for reimbursement and Employer's payments
thereof shall be in accordance with Employer's then current business expense
reimbursement policies and procedures.
6. Termination. Subject to the provisions of
this Section 6, Employer shall have the right to
terminate Employee's employment, and Employee shall have the right to resign from her
employment with Employer, at any time during the Term of this Agreement. Employer may
only terminate Employee's employment for "Cause". Termination for "Cause" shall mean
termination of Employee's employment by the Employer because of (i) any act or omission
which constitutes a material breach by Employee of her obligations or agreements under
this Agreement after written notification by the Employer specifying and describing any
such breach and the actions required to cure them, and failure of Employee to cure each
such breach in the manner specified in the notice or in a manner otherwise acceptable
to the Employer within thirty (30) days of receipt thereof, (ii) the conviction of
Employee for any crime of moral turpitude or any felony or (iii) any act or omission by
Employee which, constitutes a breach of Employee's fiduciary duty to Employer. If,
prior to the expiration of the Term, Employee's employment is terminated by Employer
for any reason or if Employee resigns from her employment hereunder Employee shall
be solely
entitled to payment of all of her
compensation earned
prior to the date of
such termination or
resignation.
7. Termination Due to Death or Disability.
Death. In the event of Employee's death, Employer shall be entitled to terminate her employment and the provisions of Section 6 shall apply.
Disability. In the event Employee is unable to perform the services contemplated hereunder by reason of disability ("Disability" shall mean any physical illness or incapacity, other than death, which renders Employee unable to perform the duties required under this Agreement for more than 60 days in any 90 day consecutive period), Employer shall be entitled to terminate Employee's employment and the provisions of Section 6 shall apply.
8. Expiration of Term. Upon the expiration of the Term of
this Agreement, whether by non-extension or non-renewal by the Employer or Employee,
all rights and obligations of both the Employer and Employee shall expire except (i) as
provided in Sections 9 and 15 herein, and (ii) for any unpaid compensation due Employee
which may have been accrued as of the expiration of the Term of this Agreement.
9. Confidential Information. Employee acknowledges that during the course of her
recruitment and employment hereunder Employee has and will become acquainted with
confidential information regarding Employer's business. From the date hereof and until
three (3) years after the end of the Term (the "Non-Disclosure Period") Employee will
not, without the prior written consent of the Employer, disclose or make use of any
such confidential information except as may be required in the course of her employment
hereunder.
10. Non-Solicitation. Employee covenants and agrees, during the Non-Disclosure Period,
that Employee will not canvass or solicit any person or entity who is a customer or
business partner of Employer about whom Employee obtained significant business
information during the Term of her employment, for the purpose of directly or
indirectly furnishing services competitive with Employer and will not solicit for
employment or employ any employee of Employer,
provided that this paragraph shall no longer be applicable in the event Employer
effects a merger or other similar transaction with another company which results in a
“Change in Control” of Employer. “Change in Control” means that
the holders of a majority of the outstanding shares of capital stock of Employer
immediately prior to the closing of transaction own less than 20% of the outstanding
shares of such capital stock immediately after the closing of such
transaction.
11. Representations, Warranties and Covenants. Employee
represents and warrants to Employer that (i) Employee is under no contractual or other
restriction or obligation which is inconsistent with her execution of this Agreement or
performance of her duties hereunder, (ii) Employee has no physical or mental disability
that would hinder her performance of her duties under this Agreement, and (iii)
she has had the opportunity to consult with an attorney
of her choosing in connection with the negotiation of this Agreement.
12. Notices. Any notice required or permitted to be given under this Agreement shall
be in writing and shall be sent by certified mail, by personal delivery or by overnight
courier to the Employee at her residence (as set forth in Employer's corporate records)
or to the Employer at its principal office.
13. Waiver of Breach. The waiver of either the Employer or Employee of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by the Employer or Employee.
14. Binding Effect. This Agreement shall be binding upon
and shall inure to the benefit of both Employer and Employee and
their respective successors, heirs or legal
representatives, but neither this Agreement nor any rights hereunder may be assigned by
either Employer or Employee without the written consent of the other party.
15. Governing Law. This Agreement shall be governed by the laws of the State of New
York without regard to the principles of the conflict of laws. The parties hereto
hereby unconditionally and irrevocably consent to the exclusive jurisdiction of the
federal and state courts located in New York, New York or Nassau County, New York in
connection with any lawsuit, claim or other proceeding arising out of or relating to
this Agreement or the transactions contemplated hereby.
16. Entire Contract: Counterparts. This instrument contains the entire agreement of
the parties and supersedes any prior agreement
between the parties with respect to the subject matter hereof, including the Employment
Agreement dated November 5, 2006 between the Company and Employee.
It may not be changed orally but only by an agreement
approved in writing by the Employer (which until
Employee and her affiliates and related parties collectively own less than 35% of the
outstanding shares of voting capital stock of the
Company shall require the
written approval of
the holders of a majority of the outstanding shares of voting capital stock of the
Company, not including any shares owned by
Employee or any of her affiliates or related parties) and
approved in writing by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought. This Agreement may be executed in one
or more counterparts, each of which shall be considered one and the same
instrument.
17. No Third Party Beneficiaries. This Agreement does not create, and shall not be
construed as creating, any rights enforceable by any person not a party to this
Agreement.
18. Headings. The headings in this Agreement are solely for convenience and shall not
be given any effect in the construction or interpretation of this Agreement.
Dated: November 6, 2006
EMPLOYEE:
/s/ Xxxxxx Xxxxx
________________________
XXXXXX XXXXX
EMPLOYER:
CHOCOLATE CANDY CREATIONS, INC.
/s/ Xxxxxx Xxxxx
By:__________________________________
Xxxxxx Xxxxx
President
