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Exhibit 10.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into, and
shall be binding this 12th day of July, 1999, by and between the Xxxxxxxxxx.xxx,
a Florida corporation ("Employer") and G. Xxxxxxx Xxxxx ("Executive").
W I T N E S S E T H:
WHEREAS, Employer, is engaged in the business of selling perfumes and
cosmetics on a discount basis through the Internet; and
WHEREAS, Executive is experienced in the management and development of
Internet technology and is professionally qualified to perform such services for
the Employer; and
WHEREAS, Employer desires to retain the services of the Executive; and
WHEREAS, Executive is desirous of obtaining employment with the
Employer on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Employer and Executive agree as follows:
1. Recitals, Representations and Warranties. The foregoing recitals are
true and correct and are incorporated herein by this reference. In addition to
the foregoing recitals, Executive represents that he has not been convicted of
any crime, has not been declared insolvent and has not filed for bankruptcy. In
addition to the foregoing recitals, Employer represents and warrants that the
individual executing this Agreement has authority to do so.
2. Employment. In exchange for the Compensation (as hereinafter
defined) and subject to the other terms and conditions hereinafter set forth,
Employer hereby employs Executive, as its Chief Technology Officer, to perform
the Executive Duties (as hereinafter defined) and Executive hereby accepts such
employment.
3. Duties. The Executive shall perform such executive and
administrative services in the running of the business of the Employer as the
Employer's Board of Directors and/or the President may assign to the Executive
during the Term (as hereinafter defined).
a. Performance of Executive Duties & Adherence to Policies.
During the Term, Executive shall render the Executive Duties exclusively for
Employer, shall perform the Executive Duties to the best of his ability and
shall operate Employer's business efficiently and profitably adhering, at all
times, to the policies of the Employer and Xxxxxxxxxx.xxx.
4. Term. The term of the Agreement shall commence on July 12, 1999 and
shall expire on July 12, 2002.
5. Compensation. In consideration of and as compensation in full for
Executive's performance of the Executive Duties hereunder, Employer agrees to
compensate Executive as follows:
a. Salary. During the Term of this Agreement, Employer shall
pay Executive a gross annual salary of One Hundred Forty Thousand Dollars
($140,000)("Salary"). Such Salary shall be paid by Employer in accordance with
Employer's regular payroll practices. Employer shall be entitled to deduct or
withhold from all Salary payable hereunder all amounts required to be deducted
or withheld from same pursuant to state or federal law.
b. Stock Option Plan:
(1) Executive shall be granted 50,000 options, at a
price equal to the stock price as of the date of the initial public offering.
Such options shall vest 1/6 each after the first 12 month period from date of
contract, 2/6 after the second 12 month period from date of contract, and 3/6
after the third 12 month period from date of contract. Options will not be
pro-rated for any partial 12 month period.
(2) At the discretion of the President, Executive may
be granted additional options.
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c. Expense Reimbursement & Insurance. Executive shall be
reimbursed for business expenses and receive full health, disability and life
insurance.
d. Vacation. Employee shall be entitled to take up to fifteen
(15) working days of vacation per twelve (12) month period during the Term.
e. Automobile Allowance. Employee shall be entitled to a
monthly automobile allowance of $500.
f. Cellular Telephone. Employee shall be entitled to the use
of one cellular telephone.
g. Increases In Salary. On July 12, 2000 and July 12, 2001,
Executive's salary from the previous year shall be increased by the higher of 5%
or C.P.I.
6. Termination of Contract.
a. Early Termination: To the extent that the Company shall
decide to terminate this agreement prior to July 1, 2002, Executive shall be
entitled to compensation as defined in paragraph 5 (including salary, bonus,
stock plan, 401K and insurance coverage) for the greater of twelve months or the
remainder of the Term of the agreement, and all unvested stock options shall
vest immediately. A termination of this Agreement shall be deemed to happen upon
a significant change in Executive's duties and/or title and/or to the extent
that providing such services would require a move from South Florida.
b. Change of Control: To the extent that Employer undergoes a
change of control, or is acquired accompanied by a change in senior management,
all items under Section 5, shall be doubled for the greater of the duration of
this Agreement or 24 months (salary, stock options, and other benefits listed
in Section 5).
7. Miscellaneous.
a. Notices. All notices, demands or other communications given
hereunder shall be in writing and shall be deemed to have been duly given only
upon hand delivery thereof or upon the first business day after mailing by
United States registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
To Employer: Xxxxxxxxxx.xxx
00000 X.X. 000 Xxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
To Executive: G. Xxxxxxx Xxxxx
0000 Xxxxxxxxx 000xx Xxxxxx
Xxxxx 000
Xxxxx Xxxxx Xxxxx, Xxxxxxx 00000
or to such other address or such other person as any party shall designate, in
writing, to the other for such purposes and in the manner hereinabove set forth.
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b. Accuracy of Statements. No representation or warranty
contained in this Agreement, and no statement delivered or information supplied
to any party pursuant hereto, contains an untrue statement of material fact or
omits to state a material fact necessary in order to make the statements or
information contained herein or therein not misleading. The representations and
warranties made in this Agreement will be continued and will remain true and
complete in all material respects and will survive the execution of the
transactions contemplated hereby.
c. Entire Agreement. This Agreement sets forth all the
promises, covenants, agreements, conditions and understandings between the
parties hereto, and supersedes all prior and contemporaneous agreements,
understandings, inducements or conditions, expressed or implied, oral or
written, except as herein contained.
d. Binding Effect; Survival & No Assignment. This Agreement
shall be binding upon the parties hereto, their heirs, administrators,
successors and assigns. This Agreement shall survive and remain effective during
any bankruptcy of the Employer. Executive may not assign or transfer his
interest herein, or delegate his Executive Duties hereunder, without the written
consent of Employer. Any assignment or delegation of duties in violation of this
provision shall be null and void.
e. Amendment. The parties hereby irrevocably agree that no
attempted amendment, modification, termination, discharge or change
(collectively, "Amendment") of this Agreement shall be valid and effective,
unless the parties shall agree in writing to such Amendment.
f. No Waiver. No waiver of any provision of this Agreement
shall be effective unless it is in writing and signed by the party against whom
it is asserted, and any such written waiver shall only be applicable to the
specific instance to which it relates and shall not be deemed to be a continuing
or future waiver.
g. Gender and Use of Singular and Plural. All pronouns herein
shall be deemed to refer to the masculine, feminine, neuter, singular or plural,
as the identity of the party or parties, or their personal representatives,
successors and assigns may require.
h. Counterparts. This Agreement and any amendments may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together will constitute one and the same instrument.
i. Headings. The article and section headings contained in
this Agreement are inserted for convenience only and shall not affect in any way
the meaning or interpretation of the Agreement.
j. Arbitration & Governing Law. Any controversy, claim or
dispute arising out of or relating to this Agreement and/or Executive's
employment with Employer shall be settled by arbitration in accordance with
applicable rules of the American Arbitration Association and judgment upon the
award rendered by the arbitrator may be entered in any court having jurisdiction
thereof. This arbitration clause shall be exactly as the arbitration clause
signed by all Perfumania employees. This Agreement shall be construed in
accordance with the laws of the State of Florida and any proceeding arising
between the parties in any manner pertaining or related to this Agreement shall,
to the extent permitted by law, be held in Dade County, Florida.
k. Further Assurances. The parties hereto will execute and
deliver such further instruments and do such further acts and things as may be
reasonably required to carry out the intent and purposes of this Agreement.
l. No Third Party Beneficiary. This Agreement is made solely
and specifically among and for the benefit of the parties hereto, and their
respective successors and assigns subject to the express provisions hereof
relating to successors and assigns, and no other person shall have any rights,
interest or claims hereunder or be entitled to any benefits under or on account
of this Agreement as a third-party beneficiary or otherwise.
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m. Severability. This Agreement is intended to be performed in
accordance with, and only to the extent permitted by, all applicable laws,
ordinances, rules, and regulations of the jurisdiction in which the parties do
business. If any provision of this Agreement, or the application thereof to any
person or circumstances shall, for any reason or to any extent, be invalid or
unenforceable, the remainder of this Agreement and the application of such
provision to other persons or circumstances shall not be affected thereby, but
rather shall be enforced to the greatest extent permitted by law.
n. Attorneys' Fees. In connection with any proceeding arising
out of this Agreement, the prevailing party shall be entitled to recover costs
and attorneys' fees, through all appeals, from the other party.
o. Renegotiation. To the extent that Employer will make a
significant acquisition or merger, this Agreement shall be renegotiated at terms
no less favorable than this Agreement.
IN WITNESS WHEREOF, Employer and Executive have executed this Agreement
as of the date first above written.
WITNESSES: EMPLOYER:
XXXXXXXXXX.XXX
By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
EXECUTIVE:
By: /s/ G. Xxxxxxx Xxxxx
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G. Xxxxxxx Xxxxx
