EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit
6.10
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement")
is made and entered this 1st day of January, 2017 (the
“Effective
Date”) between Level Brands, Inc., a North Carolina
corporation whose principal place of business is 0000 Xxxxxx Xxxx,
Xxxxxxxxx, XX 00000 (the "Corporation")
and Xxxxx Xxxxxxxxxx, an individual whose address is 00000 Xxxxxxxx
Xxxxxxx Xxxx, Xxxxxxxxx, XX (the "Executive").
RECITALS
WHEREAS, the Corporation is a branding and
marketing company focusing on lifestyle based segments including
women’s, men’s and entertainment segments (the
"Business").
WHEREAS, the Corporation desires to
employ the Executive and the Executive desires to be employed by
the Corporation.
WHEREAS, the Executive, by virtue of the
Executive's employment with the Corporation, will become familiar
with and possessed with the manner, methods, trade secrets and
other confidential information pertaining to the Corporation's
business, including the Corporation's client base.
NOW, THEREFORE, in consideration of the
mutual agreements herein made, the Corporation and the Executive do
hereby agree as follows:
1. Recitals.
The above recitals are true, correct, and are herein incorporated
by reference.
2. Employment.
The Corporation hereby employs the Executive, and the Executive
hereby accepts employment, upon the terms and conditions
hereinafter set forth.
3. Authority
and Power During Employment Period.
a. Duties
and Responsibilities. During the term of this Agreement, the
Executive will serve as Chief Executive Officer and shall have
general executive operating supervision over the property, business
and affairs of the Corporation, its subsidiaries and divisions,
subject to the guidelines and direction of the Board of Directors
of the Corporation.
b. Time
Devoted. Throughout the term of the Agreement, the Executive
shall devote substantially of the Executive's business time and
attention to the business and affairs of the Corporation consistent
with the Executive's senior executive position with the
Corporation, except for reasonable vacations and except for illness
or incapacity, but nothing in the Agreement shall preclude the
Executive from engaging in personal business, including as a member
of the Board of Directors of affiliated companies, charitable and
community affairs, provided that such activities do not interfere
with the regular performance of the Executive's duties and
responsibilities under this Agreement.
c. Corporate
Policies. The Executive shall abide by all corporate
governance and employment policies of the Corporation which may be
adopted or modified from time to time including, but not limited
to, any xxxxxxx xxxxxxx and code of ethics polities.
4. Term.
The Term of employment hereunder will commence on the Effective
Date and end on the first (1st) anniversary of the Effective Date
and may be extended for additional one (1) year periods (each a
"Renewal
Term") by written notice given by the Corporation to the
Executive at least 60 days before the expiration of the Term or the
Renewal Term, as the case may be, unless this Agreement shall have
been terminated pursuant to Section 6 of this
Agreement.
5. Compensation
and Benefits.
a. Salary.
The Executive shall be paid a base salary (“Base
Salary”), payable in accordance with the Corporation's
policies from time to time for senior executives, at an annual rate
One Hundred Twenty Thousand dollars ($120,000), such Base Salary
shall accrue until such time as the Corporation completes its
initial public offering, after which time all accrued but unpaid
salary shall be paid to the Executive].
b. Discretionary
Bonus. The Executive may be awarded a bonus from time to
time and in such amounts as may be determined by the Board of
Directors of the Corporation in their sole discretion.
c. Executive
Benefits. The Executive shall be entitled to participate in
all benefit programs of the Corporation currently existing or
hereafter made available to executive and/or salaried employees
including, but not limited to, stock option plans, pension and
other retirement plans, group life insurance, hospitalization,
surgical and major medical coverage, sick leave, salary
continuation, vacation and holidays, long-term disability, and
other fringe benefits.
d. Vacation.
During each fiscal year of the Corporation, the Executive shall be
entitled to such amount of vacation consistent with the Executive's
position and length of service to the Corporation.
e. Business
Expense Reimbursement. During the Term of employment, the
Executive shall be entitled to receive proper reimbursement for all
reasonable, out of-pocket expenses incurred by the Executive (in
accordance with the policies and procedures established by the
Corporation) in performing services hereunder, provided the
Executive properly accounts therefor.
6. Termination.
a. Death.
This Agreement will terminate upon the death of the
Executive.
b. Disability.
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(1) The
Executive's employment will terminate in the event of his
disability, upon the first day of the month following the
determination of disability as provided below. Following such a
termination, the Executive shall be entitled to compensation in
accordance with the Corporation's disability compensation practice
for senior executives, including any separate arrangement or policy
covering the Executive, but in all events the Executive shall
continue to receive his Base Salary, at the annual rate in effect
immediately prior to the commencement of disability, for three (3)
months after the termination. Any amounts provided for in this
Section 6b shall not be offset by other long-term disability
benefits provided to the Executive by the Corporation or Social
Security.
(2) "Disability,"
for the purposes of this Agreement, shall be deemed to have
occurred if (A) the Executive is unable, by reason of a physical or
mental condition, to perform his duties under this Agreement for an
aggregate of ninety (90) days in any 12-month period or (B) the
Executive has a guardian of the person or estate appointed by a
court of competent jurisdiction.
Anything
herein to the contrary notwithstanding, if, following a termination
of employment due to disability, the Executive becomes re-employed,
whether as an executive or a consultant, any compensation, annual
incentive payments or other benefits earned by the Executive from
such employment shall be offset against any compensation
continuation due to the Executive hereunder.
c. Termination
by the Corporation For Cause.
(1) Nothing
herein shall prevent the Corporation from terminating Executive for
Cause, as hereinafter defined. The Executive shall continue to
receive compensation only for the period ending with the date of
such termination as provided in this Section 6c. Any rights and
benefits the Executive may have in respect of any other
compensation shall be determined in accordance with the terms of
such other compensation arrangements or such plans or
programs.
(2) "Cause"
shall mean (A) committing or participating in an injurious act of
fraud, gross neglect, misrepresentation, embezzlement or dishonesty
against the Corporation; (B) committing or participating in any
other injurious act or omission wantonly, willfully, recklessly or
in a manner which was grossly negligent against the Corporation;
(C) engaging in a criminal enterprise involving moral turpitude;
(D) conviction for a felony under the laws of the United States or
any state thereof; (E) violation of any Federal or state securities
laws, rules or regulations, or any rules or regulations of any
stock exchange or other market on which the Corporation's
securities may be listed or quoted for trading; (F) violation of
the Corporation's corporate governance policies; or (G) any
assignment of this Agreement in violation of Section 14 of this
Agreement.
(3) Notwithstanding
anything else contained in this Agreement, this Agreement will not
be deemed to have been terminated for Cause unless and until there
shall have been delivered to the Executive a notice of termination
stating that the Executive committed one of the types of conduct
set forth in Section 6c(2) of this Agreement and specifying the
particulars thereof and the Executive shall be given a thirty (30)
day period to cure such conduct set forth in Section
6c(2).
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d. Termination
by the Corporation Other Than For Cause.
(1) The
foregoing notwithstanding, the Corporation may terminate the
Executive's employment for whatever reason it deems appropriate;
provided, however, that in the event such termination is not based
on Cause, as provided in Section 6c above, the Corporation may
terminate this Agreement upon giving the Executive thirty (30)
days' prior written notice. During such thirty (30) day period, the
Executive shall continue to perform the Executive's duties pursuant
to this Agreement. Notwithstanding any such termination, the
Corporation shall continue to pay to the Executive the Base Salary
and Executive Benefits he would be entitled to receive under this
Agreement for the balance of the Term of this Agreement in
accordance with the Corporation's regular payroll
policies.
(2) In
the event that the Executive's employment with the Corporation is
terminated pursuant to this Section 6d, Section 6f, then Section 7a
of this Agreement and all references thereto shall be voidable as
to the Executive and the Corporation.
e. Voluntary
Termination. If the Executive terminates the Executive's
employment on the Executive's own volition (except as provided in
Section 6f) prior to the expiration of the Term of this Agreement,
including any renewals thereof, such termination shall constitute a
voluntary termination and in such event the Executive shall be
limited to the same rights and benefits as provided in connection
with a termination for Cause as provided in Section
6c.
f. Constructive
Termination of Employment. A termination by the Corporation
without Cause under Section 6d shall be deemed to have occurred
upon the occurrence of one or more of the following events without
the express written consent of the Executive:
(1) a
material breach of the Agreement by the Corporation;
or
(2) failure
by a successor company to assume the obligations under the
Agreement.
Anything
herein to the contrary notwithstanding, the Executive shall give
written notice to the Board of Directors of the Corporation that
the Executive believes an event has occurred which would result in
a Constructive Termination of the Executive's employment under this
Section 6f, which written notice shall specify the particular act
or acts, on the basis of which the Executive intends to so
terminate the Executive's employment, and the Corporation shall
then be given the opportunity, within thirty (30) days of its
receipt of such notice, to cure said event; provided, however,
there shall be no period permitted to cure a second occurrence of
the same event and in no event will there be any period to cure
following the occurrence of two events described in this Section
6f.
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7. Covenant
Not To Compete and Non-Disclosure of
Information.
a. Covenant
Not To Compete. The Executive acknowledges and recognizes
the highly competitive nature of the Corporation's Business and the
goodwill, continued patronage, and the names and addresses of the
Corporation's Clients (as hereinafter defined) constitute a
substantial asset of the Corporation having been acquired through
considerable time, money and effort. Accordingly, in consideration
of the execution of this Agreement, and as except as may
specifically otherwise approved by the Corporation’s Board of
Directors, the Executive agrees to the following:
(1) That
during the Restricted Period (as hereinafter defined) and within
the Restricted Area (as hereinafter defined), the Executive will
not, individually or in conjunction with others, directly or
indirectly, engage in any Business Activities (as hereinafter
defined), whether as an officer, director, proprietor, employer,
partner, independent contractor, investor (other than as a holder
solely as an investment of less than one percent (1%) of the
outstanding capital stock of a publicly traded corporation),
consultant, advisor, agent or otherwise.
(2) That
during the Restricted Period and within the Restricted Area, the
Executive will not, directly or indirectly, compete with the
Corporation by soliciting, inducing or influencing any of the
Corporation's Clients which have a business relationship with the
Corporation at the time during the Restricted Period to discontinue
or reduce the extent of such relationship with the
Corporation.
(3) That
during the Restricted Period and within the Restricted Area, the
Executive will not (A) directly or indirectly recruit, solicit or
otherwise influence any employee or agent of the Corporation to
discontinue such employment or agency relationship with the
Corporation, or (B) employ or seek to employ, or cause or permit
any business which competes directly or indirectly with the
Business Activities of the Corporation (the "Competitive
Business") to employ or seek to employ for any Competitive
Business any person who is then (or was at any time within two (2)
years prior to the date Executive or the Competitive Business
employs or seeks to employ such person) employed by the
Corporation.
b. Non-Disclosure
of Information. The Executive acknowledges that the
Corporation's trade secrets, private or secret processes, methods
and ideas, as they exist from time to time, customer lists and
information concerning the Corporation's sources, products,
services, pricing, training methods, development, technical
information, marketing activities and procedures, credit and
financial data concerning the Corporation and/or the Corporation's
Clients, and (the "Proprietary
Information") are valuable, special and unique assets of the
Corporation, access to and knowledge of which are essential to the
performance of the Executive hereunder. In light of the highly
competitive nature of the industry in which the Corporation's
business is conducted, the Executive agrees that all Proprietary
Information, heretofore or in the future obtained by the Executive
as a result of the Executive's association with the Corporation
shall be considered confidential.
In
recognition of this fact, the Executive agrees that the Executive,
during the Restricted Period, will not use or disclose any of such
Proprietary Information for the Executive's own purposes or for the
benefit of any person or other entity or organization (except the
Corporation) under any circumstances unless such Proprietary
Information has been publicly disclosed generally or, unless upon
written advice of legal counsel reasonably satisfactory to the
Corporation, the Executive is legally required to disclose such
Proprietary Information. Documents (as hereinafter defined)
prepared by the Executive or that come into the Executive's
possession during the Executive's association with the Corporation
are and remain the property of the Corporation, and when this
Agreement terminates, such Documents shall be returned to the
Corporation at the Corporation's principal place of business, as
provided in the Notice provision (Section 10) of this
Agreement.
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c. Documents.
"Documents"
shall mean all original written, recorded, or graphic matters
whatsoever, and any and all copies thereof, including, but not
limited to: papers; books; records; tangible things;
correspondence; communications; telex messages; memoranda;
work-papers; reports; affidavits; statements; summaries; analyses;
evaluations; client records and information; agreements; agendas;
advertisements; instructions; charges; manuals; brochures;
publications; directories; industry lists; schedules; price lists;
client lists; statistical records; training manuals; computer
printouts; books of account, records and invoices reflecting
business operations; all things similar to any of the foregoing
however denominated. In all cases where originals are not
available, the term "Documents" shall also mean identical copies of
original documents or non-identical copies thereof.
d. Corporation's
Clients. The "Corporation's
Clients" shall be deemed to be any persons, partnerships,
corporations, professional associations or other organizations for
or with whom the Corporation
has performed Business Activities,
including, but not limited to, suppliers or vendors with whom the
Corporation has done or is endeavoring to do
business.
e. Restrictive
Period. The "Restrictive
Period" shall be deemed to be one (1) year following
termination of this Agreement.
f. Restricted
Area. The "Restricted
Area" shall be deemed to mean the United
States.
g. Business
Activities. "Business
Activities" shall be deemed to any business activities
concerning owning, operating, managing, promoting or
soliciting clients for the
Corporation’s Business, and any additional activities
which the Corporation or any of its affiliates may engage in during
any portion of the twelve (12)
months prior to the termination of Executive's
employment.
h. Covenants
as Essential Elements of this Agreement. It is understood by
and between the parties hereto that the foregoing covenants
contained in Sections 7a and b are essential elements of this
Agreement, and that but for the agreement by the Executive to
comply with such covenants, the Corporation would not have agreed
to enter into this Agreement. Such covenants by the Executive shall
be construed to be agreements independent of any other provisions
of this Agreement. The existence of any other claim or cause of
action, whether predicated on any other provision in this
Agreement, or otherwise, as a result of the relationship between
the parties shall not constitute a defense to the enforcement of
such covenants against the Executive. To
the extent that the covenants contained in this Section 7 may later
be deemed by a court to be too broad to be enforced with respect to
their duration or with respect to any particular activity or
geographic area, the court making such determination shall have the
power to reduce the duration or scope of the provision, and to add
or delete specific words or phrases to or from the provision. The
provision as modified shall then be enforced.
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i. Survival
After Termination of Agreement. Notwithstanding anything to
the contrary contained in this Agreement, the covenants in Sections
7a and b shall survive the termination of this Agreement and the
Executive's employment with the Corporation.
j. Remedies.
(1) The
Executive acknowledges and agrees that the Corporation's remedy at
law for a breach or threatened breach of any of the provisions of
Section 7a or b herein would be inadequate and the breach shall be
per se deemed as causing irreparable harm to the Corporation. In
recognition of this fact, in the event of a breach by the Executive
of any of the provisions of Section 7a or b, the Executive agrees
that, in addition to any remedy at law available to the
Corporation, including, but not limited to monetary damages, all
rights of the Executive to payment or otherwise under this
Agreement and all amounts then or thereafter due to the Executive
from the Corporation under this Agreement may be terminated and the
Corporation, without posting any bond, shall be entitled to obtain,
and the Executive agrees not to oppose the Corporation's request
for equitable relief in the form of specific performance, temporary
restraining order, temporary or permanent injunction or any other
equitable remedy which may then be available to the
Corporation.
(2) The
Executive acknowledges that the granting of a temporary injunction,
temporary restraining order or permanent injunction merely
prohibiting the use of Proprietary Information would not be an
adequate remedy upon breach or threatened breach of Section 7a or b
and consequently agrees, upon proof of any such breach, to the
granting of injunctive relief prohibiting any form of competition
with the Corporation. Nothing herein contained shall be construed
as prohibiting the Corporation from pursuing any other remedies
available to it for such breach or threatened breach.
8. Indemnification.
The Executive shall be continue to be covered by the Articles of
Incorporation and By-Laws of the Corporation with respect to
matters occurring on or prior to the date of termination of the
Executive's employment with the Corporation, subject to all the
provisions of North Carolina and Federal law, the Articles of
Incorporation of the Corporation and the By-Laws of the Corporation
then in effect. Such reasonable expenses, including attorneys'
fees, that may be covered by the these indemnification provisions
shall be paid by the Corporation on a current basis in accordance
with such provision, the Corporation's Articles of Incorporation,
By-Laws and North Carolina law. To the extent that any such
payments by the Corporation pursuant to these provisions may be
subject to repayment by the Executive pursuant to the provisions of
the Articles of Incorporation and/or By-Laws, or pursuant to North
Carolina or Federal law, such repayment shall be due and payable by
the Executive to the Corporation within twelve (12) months after
the termination of all proceedings, if any, which relate to such
repayment and to the Corporation's affairs for the period prior to
the date of termination of the Executive's employment with the
Corporation and as to which Executive has been covered by such
applicable provisions.
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9. Withholding.
Anything to the contrary notwithstanding, all payments required to
be made by the Corporation hereunder to the Executive or the
Executive's estate or beneficiaries shall be subject to the
withholding of such amounts, if any, relating to tax and other
payroll deductions as the Corporation may reasonably determine it
should withhold pursuant to any applicable law or regulation. In
lieu of withholding such amounts, the Corporation may accept other
arrangements pursuant to which it is satisfied that such tax and
other payroll obligations will be satisfied in a manner complying
with applicable law or regulation.
10. Notices.
Any notice required or permitted to be given under the terms of
this Agreement shall be sufficient if in writing and if sent
postage prepaid by registered or certified mail, return receipt
requested; by overnight delivery; by courier; or by confirmed
telecopy, in the case of the Executive to the Executive's last
place of business or residence as shown on the records of the
Corporation, or in the case of the Corporation to its principal
office as set forth in the first paragraph of this Agreement, or at
such other place as it may designate.
11. Waiver.
Unless agreed in writing, the failure of either party, at any time,
to require performance by the other of any provisions hereunder
shall not affect its right thereafter to enforce the same, nor
shall a waiver by either party of any breach of any provision
hereof be taken or held to be a waiver of any other preceding or
succeeding breach of any term or provision of this Agreement. No
extension of time for the performance of any obligation or act
shall be deemed to be an extension of time for the performance of
any other obligation or act hereunder.
12. Completeness
and Modification. This Agreement constitutes the entire
understanding between the parties hereto superseding all prior and
contemporaneous agreements or understandings among the parties
hereto concerning the Agreement. This Agreement may be amended,
modified, superseded or canceled, and any of the terms, covenants,
representations, warranties or conditions hereof may be waived,
only by a written instrument executed by the parties or, in the
case of a waiver, by the party to be charged.
13. Counterparts.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which shall constitute
but one agreement.
14. Binding
Effect/Assignment. This Agreement shall be binding upon the
parties hereto, their heirs, legal representatives, successors and
assigns. This Agreement shall not be assignable by the Executive
but shall be assignable by the Corporation in connection with the
sale, transfer or other disposition of its business or to any of
the Corporation's affiliates controlled by or under common control
with the Corporation.
15. Governing
Law. This Agreement shall become valid when executed and
accepted by Corporation. The parties agree that it shall be deemed
made and entered into in the State of North Carolina and shall be
governed and construed under and in accordance with the laws of the
State of North Carolina. Anything in this Agreement to the contrary
notwithstanding, the Executive shall conduct the Executive's
business in a lawful manner and faithfully comply with applicable
laws or regulations of the state, city or other political
subdivision in which the Executive is located.
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16. Further
Assurances. All parties hereto shall execute and deliver
such other instruments and do such other acts as may be necessary
to carry out the intent and purposes of this
Agreement.
17. Headings.
The headings of the sections are for convenience only and shall not
control or affect the meaning or construction or limit the scope or
intent of any of the provisions of this Agreement.
18. Survival.
Any termination of this Agreement shall not, however, affect the
ongoing provisions of this Agreement which shall survive such
termination in accordance with their terms.
19. Severability.
The invalidity or unenforceability, in whole or in part, of any
covenant, promise or undertaking, or any section, subsection,
paragraph, sentence, clause, phrase or word or of any provision of
this Agreement shall not affect the validity or enforceability of
the remaining portions thereof.
20. Enforcement.
Should it become necessary for any party to institute legal action
to enforce the terms and conditions of this Agreement, the
successful party will be awarded reasonable attorneys' fees at all
trial and appellate levels, expenses and costs.
21. Venue.
Corporation and Executive acknowledge and agree that the U.S.
District for the State of North Carolina, or if such court lacks
jurisdiction, the State of North Carolina(or its successor) in and
for Mecklenburg County, North Carolina, shall be the venue and
exclusive proper forum in which to adjudicate any case or
controversy arising either, directly or indirectly, under or in
connection with this Agreement and the parties further agree that,
in the event of litigation arising out of or in connection with
this Agreement in these courts, they will not contest or challenge
the jurisdiction or venue of these courts.
22. Construction.
This Agreement shall be construed within the fair meaning of each
of its terms and not against the party drafting the
document.
23. Role
of Counsel. The Executive acknowledges his understanding
that this Agreement was prepared at the request of the Corporation
by Xxxxxxxx Law Group LLP, its counsel, and that such firm did not
represent the Executive in conjunction with this Agreement or any
of the related transactions. The Executive, as further evidenced by
his signature below, acknowledges that he has had the opportunity
to obtain the advice of independent counsel of his choosing prior
to his execution of this Agreement and that he has availed himself
of this opportunity to the extent he deemed necessary and
advisable.
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THE EXECUTIVE ACKNOWLEDGES THAT THE EXECUTIVE HAS READ ALL OF THE
TERMS OF THIS AGREEMENT, UNDERSTANDS THE AGREEMENT, AND AGREES TO
ABIDE BY ITS TERMS AND CONDITIONS.
IN WITNESS WHEREOF, the parties have
executed this Agreement as of date set forth in the first paragraph
of this Agreement.
| Witness: |
THE COMPANY: |
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| _____________________________ | LEVEL BRANDS, INC. |
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| _____________________________ | By: /s/ Xxxx Xxxxxxx |
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Xxxx Xxxxxxx, Chief Financial Officer |
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| Witness: |
THE EXECUTIVE |
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| _____________________________ | /s/ Xxxxxx X. Xxxxxxxxxx |
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| _____________________________ | Xxxxxx X. Xxxxxxxxxx |
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