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EXHIBIT 10.28
EUROSTAR PERFUMES, INC.
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American Star Division
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INTER-OFFICE MEMORANDUM
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TO: Mr. Xxxx Xxxxxx DATE: June 5, 1995
c/c Xx. Xxxxx Xxxxx
FROM: Xxxxxxx X. Xxxxx REF: Contract
Renewal
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Dear Xxxx,
Please be advised that Xxxxx X. has offered, and I have accepted, to extend my
contract with Eurostar Perfumes, Inc. for one year, i.e. to December 31, 1996.
The following terms/conditions have been modified:
1. Remuneration: US$ 120,000.00 (one hundred twenty thousand dollars
US) per year ((i.e. from January 1, 1996 through
December 31, 1996).
2. Vacation: a total of three weeks.
3. Travel: air travel on long flights (5 hours or more) will be
in business class.
All other terms/conditions of the employment contract remain as originally
agreed.
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12001 Network-San Antonio, TX 78249-Phone: (000) 000-0000; Fax (000) 000-0000
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EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into to be effective the first day
of January, 1992, by and between EUROSTAR PERFUMES, INC., a Texas corporation
("Eurostar"), and XXXXXXX XXXXX ("Bunge").
WHEREAS, Eurostar desires to employee Bunge as the Vice President
responsible for International Sales and Bunge is willing to accept such
employment in accordance with the terms set forth below;
NOW, THEREFORE, for and in consideration of the promises hereof and
the mutual covenants contained herein, the parties hereto hereby covenant and
agree as follows:
1. EMPLOYMENT. Eurostar hereby employs Bunge and Bunge hereby
accepts employment from Eurostar upon the terms and conditions set
forth herein.
2. DUTIES. During the Employment Term (as defined hereinafter),
Bunge shall hold the position of Vice President, International Sales.
Bunge shall have and perform all of the duties and responsibilities
customarily associated with that position and any additional duties
and responsibilities as may be assigned or delegated to him from time
to time by Eurostar's President or Board of Directors. Such duties
referred to in the preceding sentence shall include, but shall not be
limited to, the following: responsibility and accountability for all
marketing and sales efforts in Central and South America; hire,
supervise and fire all sales and related administrative personnel
assigned to sales effort in Central and South America; participate in
the formulation of budget numbers relating to sales in Central and
South America. Bunge shall perform his duties and obligations during
Eurostar's normal business hours and at all other times reasonably
necessary to comply with the spirit and purpose of this Agreement. In
carrying out his duties and responsibilities hereunder, Bunge shall
abide in all material respects by the policies of Eurostar and shall
devote his full time, attention, energies, skills and best efforts
exclusively to the performance of his duties and responsibilities for
and on behalf of Eurostar.
3. EMPLOYMENT TERM AND TERMINATION.
3.1 Employment Term. Subject to the provisions of
subparagraph 3.2 of this Agreement, Bunge's employment
hereunder shall be for a term ("Employment Term") commencing
on the effective date hereof and expiring on December 31, 1995
("Termination Date"). Thereafter, the Employment Term may be
renewed only upon the mutual consent and agreement of Eurostar
and Bunge.
3.2 Termination During Employment Term. The Employment
Term, and thus Bunge's employment hereunder, may be terminated
prior to the Termination Date by Eurostar for "Reasonable
Cause" (as hereinafter defined) effective immediately upon
giving Bunge written notice of termination. Termination for
Reasonable Cause shall immediately terminate any and all of
Eurostar's obligations under this Agreement. As used in this
Agreement, "Reasonable Cause" shall mean: the commission by
Bunge of a felony or any act of fraud, dishonesty, theft or
embezzlement against Eurostar; Bunge's failure to perform in a
material way any of his responsibilities or duties hereunder,
and Bunge does not cure such failure within ten (10 ) days
after receipt of written notice of such failure from Eurostar:
Bunge's death or permanent and total disability (i.e. a
disability which prevents Bunge from performing the essential
functions of his position).
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4. COMPENSATION AND OTHER BENEFITS. For the services to be
rendered during the Employment Term by Bunge hereunder, Bunge shall
be entitled to receive from Eurostar the following:
4.1 Annual Base Salary. During the Employment Term,
Bunge shall receive the following annual base salary ("Annual
Base Salary") in equal periodic installments in accordance
with Eurostar's customary practices: (I) Ninety Thousand and
No/100 Dollars ($90,000.00) for year one of the Employment
Term; (ii) One Hundred Thousand and No/100 Dollars
($100,000.00) for year two of the Employment Term; and (iii)
One Hundred Ten Thousand and No/100 Dollars ($110,000.00) for
year three of the Employment Term.
4.2 Annual Performance Bonus. During he Employment Term,
Bunge shall be entitled to receive, in addition to the Annual
Base Salary, an annual performance bonus ("Annual Performance
Bonus") in the amount equal to but only payable according to
the following terms: The maximum amount of Annual Performance
Bonus which Bunge may receive in any calendar year is a sum
equal to twenty percent (20%) of his relevant Annual Base
Salary. The actual amount which Bunge shall receive shall be
calculated as follows: (i) one-half of the Annual Performance
Bonus (i.e. an amount up to ten percent (10%) of his Annual
Base Salary) shall be determined by Eurostar, in their sole
discretion, based on Bunge's overall performance; (ii) the
remaining one-half of the Annual Performance Bonus (i.e. an
amount up to ten percent (10%) of his Annual Base Salary)
shall be an amount calculated as follows: a sum equal to ten
percent (10%) of Bunge's relevant Annual Base Salary
multiplied by a fraction the numerator of which is equal to
the actual annual gross sales in Central and South America in
the relevant year and the denominator of which is equal to the
budgeted annual gross sales for Central and South America for
the relevant year.
4.3 Annual Incentive Bonus. During the Employment Term,
Bunge shall be entitled to receive, in addition to the Annual
Base Salary and any Annual Performance Bonus, an annual
incentive bonus ("Annual Incentive Bonus") in the amount equal
to but only payable according to the following terms: In any
calendar year in which the gross sales in Central and South
America exceed the gross sales budgeted for that year in
Central and South America, Bunge shall be entitled to receive
a sum equal to one-half of one percent (.5%) of the gross
sales which are in excess of the budgeted sales amount.
Eurostar shall pay this Annual Incentive Bonus within sixty
(60) days after the end of the calendar year. As used in this
Agreement, the term "gross sales" shall mean actual sales for
which payment has been received by Eurostar less any
applicable returns and allowances.
4.4 Other Eurostar Employment Benefits. During the
Employment Term, Bunge shall be eligible to receive and
participate in all other employment benefits (such as employee
insurance plans, retirement plans, vacations, etc.) which
Eurostar provides its employees in substantially equivalent
positions. Nothing in this subparagraph shall prohibit or
limit the right of Eurostar to discontinue, modify or amend
any plan or benefit in its absolute discretion at any time
provided such discontinuation, modification or amendment is
applied generally to all such employees of Eurostar and not
solely to Bunge.
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4.5 Moving and Relocation Expenses. Eurostar shall
reimburse Bunge for reasonable actual third party expenses
incurred in the moving of the household goods and personal
effects of Bunge, his spouse and children. Eurostar shall also
reimburse Bunge for reasonable closing costs incident to the
sale of Bunge's former residence and purchase of a new
residence. Reasonable closing costs shall include such items
as appraisal fees, broker commissions, legal fees and similar
other closing expenses but does not include any expenses
related to the financing of the new or the current residence,
the pro ration of taxes and/or insurance or other similar fees
related to actual ownership or financing for the residences.
Eurostar shall also reimburse Bunge for the actual third party
rent expense incurred in the rental of a furnished one bedroom
apartment for a period from the date of this Contract until
Bunge moves his household to San Antonio, Texas or until July
1, 1993, whichever occurs earlier.
4.6 Business expense Reimbursement. Eurostar shall
reimburse Bunge for reasonable and necessary expenses incurred
by him on behalf of Eurostar in the performance of his duties
during the Employment Term. Bunge shall furnish Eurostar with
the appropriate documentation of such expenses as required
under Eurostar's policy in connection with such expenses.
5. RESTRICTIVE COVENANTS
5.1 Proprietary Property. Eurostar believes and Bunge
agrees that during his employment, he will be provided with or
given access to confidential or trade secret information of
Eurostar or others with whom Eurostar does business and the
maintenance of the confidentiality and proprietary character
of such information is important to Eurostar. Bunge agrees
that he will not disclose to any person or use, except as
required by the duties of his employment, any confidential
information for so long as it shall remain confidential or
otherwise totally or partially protectable or proprietary.
Either upon termination of Bunge's employment or at any other
time at Eurostar's request, Bunge shall promptly deliver to
Eurostar without retaining any copies, any and all documents
and other materials in his possession that relates directly or
indirectly to any confidential or proprietary information of
Eurostar.
5.2 Non-Solicitation of Employees. Bunge agrees that
during his employment and for a period of thirty-six (36)
months following the termination of employment for any reason
whatsoever, neither he nor any person or enterprise controlled
by Bunge will solicit for employment any person employed by
Eurostar or any of its affiliates, successors or assigns at
any time within one year prior to the time of the act of
solicitation.
5.3 Non-Competition. Bunge hereby covenants and agrees
that during the term of this Agreement and for a period of
thirty-six (36) months following the date of any termination
of employment of Bunge with Eurostar, he shall not, directly
or indirectly, whether as an officer, director, stockholder
(5% ownership or more), partner, owner, employee,
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creditor, or otherwise, except through Eurostar or with prior
written consent of Eurostar, engage or participate or have any
financial interest in any business or activity similar to, or
competitive with the business of Eurostar in the geographic
area which encompasses North America, Central America and
South America.
If at the time of the enforcement of this section 5, a court
shall hold that the all or any part of this section 5 is unenforceable
due to its general scope, duration or geographic scope, then in such
event the parties agree that the scope, duration and geographic scope
shall be automatically reduced to the greatest scope, longest period
of time and the largest geographical area enforceable under the
applicable law.
5.4 Equitable Relief. Bunge hereby acknowledges that it
would be impossible to measure the monetary damages to
Eurostar by reason of a breach of any of the provisions of
this section 5 by Bunge. Therefore, in the event of a breach
by Bunge of any of the provisions of this section 5, Eurostar
shall be entitled to equitable relief, from any court of
competent jurisdiction, including the right to enjoin any
party in violation of this Agreement. Bunge hereby waives any
claim or defense that there is an adequate remedy at law. The
remedy provided to Eurostar in this paragraph is cumulative
and in addition to any other remedies under applicable law or
equity.
5.5 Bunge's Acknowledgment. Bunge hereby expressly
acknowledges that: (i) the restrictions and obligations set
forth in and imposed under this section 5 will not prevent him
from obtaining gainful employment in his field of expertise or
cause him undue hardship in that there are numerous other
employment and business opportunities available to him that
are not affected by the restrictions and other obligations
imposed hereunder; and (ii) the restrictions and obligations
imposed on him under this section 5 are reasonable and
necessary to protect the legitimate business interests of
Eurostar and that any violation thereof would result in
irreparable damage to Eurostar.
6. GENERAL PROVISIONS.
6.1 This Agreement may be amended by mutual agreement of
the parties hereto in a writing to be attached to and
incorporated into this Agreement.
6.2 This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties
hereto with respect to the subject matter hereof and no other
agreement relating to the subject of this Agreement shall be
binding.
6.3 Neither this Agreement nor any duties or obligations
hereunder shall be assignable by Bunge without the prior
written consent of Eurostar.
6.4 Any notice given pursuant to this Agreement shall be
deemed given on the earlier of either (i) the date of actual
delivery of the notice, (ii) the date of transmission of a
telegram or telefax so long as such transmittal is confirmed
and followed by a copy in certified mail; or (iii) when
deposited in the mail by certified mail, return receipt
requested addressed to the other party at the address given
below or any other address which it shall have notified the
person giving such notice in writing.
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To Eurostar:
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To Bunge:
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6.5 This Agreement shall be exclusively governed by and
construed in accordance with the laws of the State of Texas.
If any provision in this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable,
the remaining provisions shall remain in full force and
effect, as if this Agreement had been executed without any
such invalid provisions having been included.
6.6 The headings contained herein are for convenience
only and shall not be considered to affect the meaning or
interpretation of any provision of this Agreement.
EXECUTED TO BE EFFECTIVE the 1st day of January, 1993.
EUROSTAR PERFUMES, INC.,
A Texas corporation
By:
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Its:
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Xxxxxxx Xxxxx
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Terms of Offer for Employment of Xxxxxxx Xxxxx by EUROSTAR PERFUMES, INC.
1. Position: Vice President, International Sales
2. Contract Period: 3 years
3. Salary: $ 90,000 1st year
100,000 2nd year
110,000 3rd year
4. Opportunity for Bonus:
20% each year, comprising of
10% towards achieving budget
10% towards overall performance
Some additional incentive for going over budget
5. Medical Insurance Program: As per company's family medical coverage plan.
6. Temporary Living: Company-provided, furnished one bedroom flat
up to July, 1993.
7. Relocation: All reasonable moving costs, real estate
agents' fees and legal costs for sale of
current home. Legal fees towards new home (no
financial or mortgage costs).
8. Retirement Benefit: After 1-2 years a company sponsored 401-k plan.
