EXHBIT 10.1
AMENDED EMPLOYMENT AGREEMENT
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 16th of June
2008.
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" (defined as
net revenues (after returns) less raw materials and packaging costs (exclusive
of any depreciation on manufacturing machinery and any inventory writedowns)
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 calculation of compensation shall be applicable beginning January 1, 2007.
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 and the Employment
Agreement dated November 6, 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: June 16, 2008
EMPLOYEE:
/s/ Xxxxxx Xxxxx
________________________
XXXXXX XXXXX
EMPLOYER:
CHOCOLATE CANDY CREATIONS, INC.
/s/ Xxxxxx Xxxxx
By:__________________________________
Xxxxxx Xxxxx
President
