CONO ITALIANO, INC. EMPLOYMENT AGREEMENT
EMPLOYMENT
AGREEMENT, dated this 30th day of
December, 2009 (the “Agreement”), by and
between Cono Italiano, Inc., a Nevada corporation (the “Company”), and Xxxx
Xxxxxxxx (the “Executive”).
WHEREAS,
the Company desires to engage the Executive to serve the Company as the Chief
Financial Officer and Treasurer and the Executive desires to serve as the Chief
Financial Officer and Treasurer of the Company;
NOW
THEREFORE, in consideration of the premises and the mutual agreements made
herein, the Company and the Executive agree as follows:
1. Employment;
Duties. The Company shall engage the Executive to serve as
Chief Financial Officer and Treasurer of the Company. The Executive
shall serve the Company in such capacity for the “Employment Period” as
defined in Section 2. The Executive agrees that during the term of
his employment hereunder, he shall devote approximately Sixty Percent (60%) of
his professional working time, attention, knowledge and experience and give his
best effort, skill and abilities to promote the business and interests of the
Company as directed by the Board of Directors of the Company or a committee of
the Board of Directors to which the Board of Directors has duly delegated
authority thereof (collectively, the “Board”). The
Company acknowledges and agrees that the services rendered to the Company shall
not be exclusive to the Company and the Executive may pursue other business
activities so long as such other business activities are not in conflict with
the Company. The Executive agrees to faithfully and diligently
perform such reasonable duties commensurate with the position of Chief Financial
Officer and Treasurer as may from time to time be assigned to the Executive by
the Board. For purposes of clarity, except with respect to
subsidiaries of the Company, to the extent the Executive renders services to any
other organizations, all such services must be rendered in a separate capacity
and shall not be deemed to constitute services of the Executive as an agent of
any such other organization to the Company or by or on behalf of the Company to
such other organizations unless expressly delegated in writing to such
effect.
2. Employment
Period. This Agreement shall have an initial term of two
year(s) to be effective commencing as of January 1, 2010 and ending on December
31, 2011 (the “Initial
Employment Period”), unless sooner terminated in accordance with the
provisions of Section 7 or Section 8. This Agreement shall
automatically renew and continue to remain in effect after the Initial
Employment Period for successive one year periods (each, a “Renewal Employment
Period”), until terminated as provided herein, unless either party
provides the other party with written notice of non-renewal not later than 30
days prior to the expiration of the Initial Period or the anniversary of such
date in any subsequent Renewal Employment Period. The Initial
Employment Period and each Renewal Employment Period of this Agreement is
referred to herein as the “Employment
Period.”
3. Compensation.
(a) Base
Compensation. The Executive shall be paid a base salary of
Fifty Thousand Dollars ($50,000) payable incrementally on
a monthly basis and pro-rated for any partial year of employment, less any
applicable statutory and regulatory deductions (the “Base
Salary”). The Executive hereby agrees to defer the receipt of
Base Salary and any and all other amounts due hereunder, all of which shall
accrue and not become due and payable by the Company to the Executive
until the first business day of January 2012 (the “Deferral
Period”).
(b) Form of
Compensation. At the end of the Deferral Period, the Company
shall have the choice of paying the Executive the deferred Base Salary within
thirty (30) calendar days in either (i) a lump sump cash payment, or (ii) in
restricted shares of the Company’s common stock (such stock compensation, the
“Stock
Payment”). The Stock Payment shall be equal in value to the
outstanding Base Salary, with such value to be calculated on the basis of the
average of the closing price of shares of the Company’s common stock on the
thirty (30) calendar days prior to and including December 31,
2011. Such closing prices shall be determined by reference to the
closing price of common stock of the Company, as listed on the primary exchange
for the trading of the Company’s common stock, or in the absence of such an
exchange, as listed on the NASDAQ’s Over the Counter Bulletin Board or any
successor thereto.
(c) Options. The
Executive shall be eligible to participate in the Company equity incentive plan
and options as granted at the discretion of the Board of Directors.
(d) Expense
Reimbursement. The Executive shall be entitled to
reimbursement of reasonable out-of-pocket expenses incurred in connection with
travel and matters related to the Company's business and affairs if made in
accordance with written Company policy as in effect from time to time as
determined by the Board.
(e) Place of Employment.
The parties agree that the principal place of services to be rendered to the
Company by Executive shall be in New Jersey and all compensation shall be paid
to Executive in such jurisdiction.
4. Trade
Secrets. The Executive agrees that it is in the Company's
legitimate business interest to restrict his disclosure or use of Trade Secrets
and Confidential Information relating to the Company or its affiliates as
provided herein, and agrees not to disclose or use the Trade Secrets and/or
Confidential Information relating to the Company or its affiliates for any
purpose other than in connection with his performance of his duties to the
Company. For purposes of this Agreement, “Trade Secrets” shall
mean all confidential and proprietary information belonging to the Company
(including prospective client lists, ideas, formulas, compositions, inventions
(whether patentable or unpatentable and whether or not reduced to practice),
know-how, manufacturing and production processes and techniques, research and
development information, drawings, specifications, designs, plans, proposals,
technical data, copyrightable works, financial and marketing plans and customer
and supplier lists and information). For purposes of this
Agreement, “Confidential
Information” shall mean all information other than Trade Secrets
belonging to, used by, or which is in the possession of the Company and relating
to the Company’s business or assets specifically including, but not limited to,
information relating to the Company’s products, services, strategies, pricing,
customers, representatives, suppliers, distributors, technology, finances,
employee compensation, computer software and hardware, inventions, developments,
in each case to the extent that such information is not required to be disclosed
by applicable law or compelled to be disclosed by any governmental
authority. Notwithstanding the foregoing, the terms “Trade Secrets” and
“Confidential
Information” do not include information that (i) is or becomes generally
available to or known by the public (other than as a result of a disclosure by
the Executive), provided, that the source of
such information is not known by the Executive to be bound by a confidentiality
agreement with the Company; or (ii) is independently developed by the Executive
without violating this Agreement.
5. Return of Documents and
Property. Upon the expiration or termination of the
Executive's employment with the Company, or at any time upon the request of the
Company, the Executive (or his heirs or personal representatives) shall deliver
to the Company (a) all documents and materials (including, without limitation,
computer files) containing Trade Secrets and Confidential Information relating
to the business and affairs of the Company or its affiliates, and (b) all
documents, materials, equipment and other property (including, without
limitation, computer files, computer programs, computer operating systems,
computers, printers, scanners, pagers, telephones, credit cards and ID cards)
belonging to the Company or its affiliates, which in either case are in the
possession or under the control of the Executive (or his heirs or personal
representatives).
6. Discoveries and
Works. All Discoveries and Works made or conceived by the
Executive during his employment by the Company, solely, jointly or with others,
that relate to the Company's present or anticipated activities, or are used or
useable by the Company shall be owned by the Company. For the
purposes of this Section 6, (including the definition of “Discoveries and
Works”) the term “Company” shall
include the Company and its affiliates. The term “Discoveries and
Works” includes, by way of example but without limitation, Trade Secrets
and other Confidential Information, patents and patent applications, service
marks, and service xxxx registrations and applications, trade names, copyrights
and copyright registrations and applications. The Executive shall (a)
promptly notify, make full disclosure to, and execute and deliver any documents
requested by the Company, as the case may be, to evidence or better assure title
to Discoveries and Works in the Company, as so requested, (b) renounce any and
all claims, including but not limited to claims of ownership and royalty, with
respect to all Discoveries and Works and all other property owned or licensed by
the Company, (c) assist the Company in obtaining or maintaining for itself at
its own expense United States and foreign patents, copyrights, trade secret
protection or other protection of any and all Discoveries and Works, and (d)
promptly execute, whether during his employment with the Company or thereafter,
all applications or other endorsements necessary or appropriate to maintain
patents and other rights for the Company and to protect the title of the Company
thereto, including but not limited to assignments of such patents and other
rights. Any Discoveries and Works which, within one year after the
expiration or termination of the Executive's employment with the Company, are
made, disclosed, reduced to tangible or written form or description, or are
reduced to practice by the Executive and which pertain to the business carried
on or products or services being sold or delivered by the Company at the time of
such termination shall, as between the Executive and, the Company, be presumed
to have been made during the Executive's employment by the
Company. The Executive acknowledges that all Discoveries and Works
shall be deemed “works
made for hire” under the U.S. Copyright Act of 1976, as amended 17 U.S.C.
Sect. 101.
7. Termination.
(a) Termination by the
Company. The Company may terminate this Agreement with or
without cause at any time during the Employment Period effective immediately
upon giving written notice of termination to the Executive. In the
event that the Executive is terminated without cause, all options granted to
date to the Executive shall immediately vest. In the event that the
Executive is terminated with cause, all unvested options shall
expire. For purposes of this Agreement, “cause” shall mean,
with respect to the Executive, (i) any act of fraud or dishonesty, willful
misconduct or negligence in connection with the Executive's performance of his
duties, (ii) repeated failure of the Executive to follow reasonable instructions
of the Board, (iii) dishonesty of the Executive which causes a material
detriment to the Company or its affiliates, (iv) a breach by the Executive of
any provision hereof or of any contractual or legal fiduciary duty to the
Company (including, but not limited to, the unauthorized disclosure of Trade
Secrets or other Confidential Information, non-compliance with the policies,
guidelines and procedures of the Company or engaging during his employment in
any other employment or business without the express written approval of the
Company’s Board of Directors), (v) the arrest of the Executive for the
commission of a felony, whether or not such alleged felony was committed in
connection with the Company's business or (vi) the commencement of any
bankruptcy proceedings (whether voluntary or involuntary), the appointment of a
trustee or receiver for the Executive or the general assignment of the
Executive's assets to his creditors.
(b) Termination by Executive
. The Executive may terminate this Agreement with or without cause at any
time during the Employment Period upon thirty (30) days prior written notice of
termination to the Company.
(c) Effect of
Termination. Except as otherwise provided herein, in the event
this Agreement is terminated pursuant to this Section 7, the Executive's rights
and the Company's obligations hereunder shall cease as of the effective date of
the termination, including, without limitation, the right to receive Base Salary
not yet accrued, options not yet granted and all other compensation or benefits
provided for in this Agreement. The Executive shall not be entitled
to any further compensation, options, or severance compensation of any kind,
other than the payment of Base Salary accrued through the termination date, to
be paid after the end of the Deferral Period, as described in Section 3 of this
Agreement. The Executive shall have no further right or claim to any
compensation, options, benefits or severance compensation under this Agreement
or otherwise against the Company or its affiliates, from and after the date of
such termination, except as required by applicable law. Any
termination under this Section 7 is subject to the provisions of Sections 18 and
20 hereof.
(d) Relinquishment of
Authority. Notwithstanding anything to the contrary set forth
herein, upon written notice to the Executive, the Company may immediately
relieve the Executive of all his duties and responsibilities hereunder and may
relieve the Executive of authority to act on behalf of, or legally bind, the
Company.
(e) Transition
Services and
Certifications. Following any termination for any reason, the
Executive shall render any and all services reasonably necessary for the Company
to facilitate proper transition of the Company’s books and records and the
Executive shall certify to the Company that any and all books and records
maintained during the period of Executive’s services to the Company were true
and complete and did not contain any material misstatements or omissions or any
misleading information of any nature or kind, and that all controls and
procedures of the Company under the management authority of Executive during the
period of employment were properly observed during the period of service of the
Executive.
8. Disability:
Death.
(a) If,
prior to the expiration of any applicable Employment Period, the Executive shall
be unable to perform his duties hereunder by reason of physical or mental
disability for at least ninety (90) calendar days, the Company shall have the
right to terminate this Agreement and the remainder of the Employment Period by
giving written notice to the Executive to that effect. Immediately
upon the giving of such notice, the Employment Period shall
terminate.
(b) Upon
termination of this Agreement pursuant to Section 8(a), the Executive shall
(i) be paid his Base Salary through the effective date of such termination,
at the end of the Deferral Period and in accordance with the terms of Section 3,
above, and (ii) all options previously granted shall remain in full force and
effect. All other compensation and benefits provided for in
Section 3 of this Agreement shall cease upon termination pursuant to
Section 8(a), except as otherwise required by applicable law.
(c) In
the event of a dispute as to whether the Executive is disabled within the
meaning of Section 8(a), either party may from time to time request a medical
examination of the Executive by a doctor appointed by the chief of staff of a
hospital selected by mutual agreement of the parties, or as the parties may
otherwise agree, and the written medical opinion of such doctor shall be
conclusive and binding upon the parties as to whether the Executive has become
disabled and the date when such disability arose. The cost of any
such medical examination shall be borne by the requesting party.
(d) If,
prior to the expiration of the Employment Period or the termination of this
Agreement, the Executive shall die, the Executive's estate shall be paid any
compensation due through such date of death. Except as otherwise
provided in this Section 8(d), upon the death of the Executive, the Employment
Period shall terminate without further notice and the Company shall have no
further obligations hereunder, including, without limitation, obligations with
respect to compensation, options and benefits provided for in Section 3 of
this Agreement, other than as set forth in the immediately preceding sentence or
as otherwise required by law. Any termination under this Section 8 is
subject to the provisions of Section 18 hereof.
9. No
Conflicts. The Executive has represented and hereby represents
to the Company and its affiliates that the execution, delivery and performance
by the Executive of this Agreement do not conflict with or result in a violation
or breach of, or constitute (with or without notice or lapse of time or both) a
default under any contract, agreement or understanding, whether oral or written,
to which the Executive is a party or of which the Executive is or should be
aware and that there are no restrictions, covenants, agreements or limitations
on his right or ability to enter into and perform the terms of this Agreement,
and agrees to indemnify and save the Company and its affiliates harmless from
any liability, cost or expense, including attorney’s fees, based upon or arising
out of any such restrictions, covenants, agreements, or limitations that may be
found to exist. For purposes of this Agreement, “affiliate” shall
include any subsidiary in the case of the Company, and any person or entity
directly or indirectly controlled by or controlling the Company.
10. Non-competition. Except
as authorized by the Board of Directors, during the Executive’s employment by
the Company and for a period of one year thereafter, Executive will not (except
as an officer, director, stockholder, employee, agent or consultant of the
Company or any subsidiary or affiliate thereof) either directly or indirectly,
whether or not for consideration, (i) in any way, directly or indirectly,
solicit, divert, or take away the business of any person who is or was a
customer of the Company, or in any manner influence such person to cease doing
business in part or in whole with Company; (ii) engage in a Competing Business;
(iii) except for investments or ownership in public entities, mutual funds
and similar investments, none of which constitute more than 5% of the ownership
or control of such entities, own, operate, control, finance, manage, advise, be
employed by or engaged by, perform any services for, invest or otherwise become
associated in any capacity with any person engaged in a Competing Business in
the United States; or (iv) engage in any practice the purpose or effect of which
is to intentionally evade the provisions of this covenant. For purposes of this
section, “Competing
Business” means any company or business which is engaged directly or
indirectly in any business carried on or planned to be carried on by the Company
or any of its subsidiaries or affiliates.
11. Non-Solicitation. During
the Executive’s employment by the Company and for a period of one year
thereafter (the “Restricted Period”),
the Executive, directly or indirectly, whether for his account or for the
account of any other individual or entity, shall not solicit or canvas the
trade, business or patronage of, or sell to, any individuals or entities that
were either customers of the Company during the time the Executive was employed
by the Company, or prospective customers with respect to whom a sales effort,
presentation or proposal was made by the Company or its affiliates, during the
one year period prior to the termination of the Executive’s
employment. The Executive further agrees that during the Restricted
Period, he shall not, directly or indirectly, (i) solicit, induce, enter into
any agreement with, or attempt to influence any individual who was an employee
or consultant of the Company at any time during the time the Executive was
employed by the Company, to terminate his or her employment relationship with
the Company or to become employed by the Executive or any individual or entity
by which the Executive is employed or (ii) interfere in any other way with the
employment, or other relationship, of any employee or consultant of the Company
or its affiliates.
12. Enforcement. The
Executive agrees that any breach of the provisions of this Agreement would cause
substantial and irreparable harm, not readily ascertainable or compensable in
terms of money, to the Company for which remedies at law would be inadequate and
that, in addition to any other remedy to which the Company may be entitled at
law or in equity, the Company shall be entitled to temporary, preliminary and
other injunctive relief in the event the Executive violates or threatens to
violate the provisions of this Agreement, as well as damages, including, without
limitation consequential damages, and an equitable accounting of all earnings,
profits and benefits arising from such violation, in each case without the need
to post any security or bond. Nothing herein contained shall be
construed as prohibiting the Company from pursuing, in addition, any other
remedies available to the Company for such breach or threatened
breach. A waiver by the Company of any breach of any provision hereof
shall not operate or be construed as a waiver of a breach of any other provision
of this Agreement or of any subsequent breach by the Executive.
13. Determinations by the
Company. All determinations and calculations with respect to
this Agreement shall be made by the Board or any committee thereof to which the
Board has delegated such authority, in good faith in accordance with applicable
law, the certificate of incorporation and by-laws of the Company, in its sole
discretion, and shall be final, conclusive and binding on all persons, including
the Executive and the personal representative of his estate.
14. Successors and
Assigns. This Agreement shall inure to the benefit of and
shall be binding upon (i) the Company, its successors and assigns, and any
company with which the Company may merge or consolidate or to which the Company
may sell substantially all of its assets, and (ii) Executive and his executors,
administrators, heirs and legal representatives. Since the
Executive’s services are personal and unique in nature, the Executive may not
transfer, sell or otherwise assign his rights, obligations or benefits under
this Agreement.
15. Notices. Any
notice required or permitted under this Agreement shall be deemed to have been
effectively made or given if in writing and personally delivered, or sent
properly addressed in a sealed envelope postage prepaid by certified or
registered mail, or delivered by a reputable overnight delivery
service. Unless otherwise changed by notice, notice shall be properly
addressed to the Executive if addressed to the address of record on file with
the Company; and properly addressed to the Company if addressed to:
00 Xxxx Xxxxxx
Xxxxxxx,
XX 00000
Telephone: 000-000-0000
Attention: Xxxxxxxx
Xxxxx
With a
copy to:
Wuersch & Xxxxxx LLP
000 Xxxx Xxxxxx, 00xx
Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Telecopier: 212-509-9559
Attention: Xxxxxx
X. Xxxxxx, Esq.
16. Severability. It
is expressly understood and agreed that although the Company and the Executive
consider the restrictions contained in this Agreement to be reasonable and
necessary for the purpose of preserving the goodwill, proprietary rights and
going concern value of the Company, if a final determination is made by
arbitration or any court having jurisdiction that any provision contained in
this Agreement is invalid, the provisions of this Agreement shall not be
rendered void but shall be deemed amended to apply as to such maximum time and
territory and to such other extent as such arbitral body or court may determine
or indicate to be reasonable. Alternatively, if the arbitrable body
or court finds that any provision or restriction contained in this Agreement or
any remedy provided herein is unenforceable, and such restriction or remedy
cannot be amended so as to make it enforceable, such finding shall not affect
the enforceability of any of the other restrictions contained therein or the
availability of any other remedy. The provisions of this Agreement
shall in no respect limit or otherwise affect the Executive's obligations under
any other agreements with the Company.
17. Counterparts. This
Agreement may be executed in several counterparts, each of which shall be deemed
to be an original but all of which together will constitute one and the same
instrument. Signatures hereto may be facsimiles or electronically
scanned copies which shall have the same full force and effect as a manually
signed original thereof.
18. Effects of
Termination. Notwithstanding anything to the contrary
contained herein, if this Agreement is terminated pursuant to Section 7 or
Section 8 or expires by its terms, the provisions of Sections 4-6 and 10-20 of
this Agreement shall survive and continue in full force and effect.
19. Governing Law and
Arbitration. This
Agreement shall be governed by the laws of the State of New York. All
disputes and controversies arising out of or relating to this Agreement shall be
finally settled and binding under the Rules of International Commercial Dispute
Resolution of the American Arbitration Association. The place of
arbitration shall be New York. The Arbitration shall be conducted a
single arbitrator appointed in accordance with the ICDR rules. Any
award, verdict or settlement issued under such arbitration may be entered by any
party for order of enforcement by any court of competent
jurisdiction. The arbitrator shall have no power to take interim
measures he or she deems necessary, including injunctive relief and measures for
the protection or conservation of property.
20. Miscellaneous. This
Agreement constitutes the entire agreement, and supersedes all prior agreements,
of the parties hereto relating to the subject matter hereof, and there are no
written or oral terms or representations made by either party other than those
contained herein. This Agreement cannot be modified, altered or
amended except by a writing signed by both parties. No waiver by
either party of any provision or condition of this Agreement at any time shall
be deemed a waiver of such provision or condition at any prior or subsequent
time or of any other provision or condition at the same or any prior or
subsequent time.
[signature
page follows]
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Cono
Italiano, Inc. - Employment Agrement
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and year
first above written.
|
|
EXECUTIVE | ||
| /s/ Xxxx Xxxxxxxx | |||
| Name: Xxxx Xxxxxxxx | |||
| THE COMPANY: CONO ITALIANO, INC. | |||
|
By:
|
/s/ Xxxxxxxx Xxxxx | ||
| Name: Xxxxxxxx Xxxxx | |||
| Title: Chief Executive Officer | |||
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