EMPLOYMENT AGREEMENT
Exhibit
10.1
This
Employment Agreement is made on this 5th day of January, 2009, between CELSIUS
HOLDINGS, INC. and CELSIUS, INC (“Employer”) and Xxxx Xxxxxxx
(“Employee”).
WHEREAS,
Employer is actively engaged in the business of a manufacturing and distributing
of non-alcoholic beverages; and,
WHEREAS,
Employer wishes to continue employing Employee and Employee wishes to continue
to be employed pursuant to the terms of this Employment Agreement.
WHEREAS,
since Employer’s securities are registered with the Securities and Exchange
Commission (“SEC”), it may be required to form a compensation committee (the
“Compensation Committee”), which may in many cases determine any changes to
Employee’s compensation. In such instance, the relevant references to Employer
herein shall be deemed to be references to Compensation Committee.
NOW
THEREFORE, in consideration of the mutual covenants and agreements contained in
this Employment Agreement, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties, intending
to be legally bound, agree as follows:
Article
1
Employment
of Employee
Employer
agrees to employ Employee, and Employee accepts employment with Employer, on and
subject to the terms and conditions set forth in this Employment
Agreement.
Article
2
Duties of
Employee
Section
2.1. Position and
Duties. Employer agrees to employ Employee to act as Chief
Operating Officer for Employer. Employee shall be responsible for
performing the following duties: executive management and other duties typically
performed by persons employed in a similar capacity. Employer reserves the right
from time to time to change the nature of Employee’s duties and job title;
provided, however, Employee’s duties and job title shall always be of an
executive nature.
Section
2.2. Time Devoted to
Work. Employee agrees to devote Employee’s entire business time,
attention, and energies to the business of Employer in accordance with
Employer’s instructions and directions and shall not be engaged in any other
business activity, whether or not the activity is pursued for gain, profit, or
other pecuniary advantage, during the term of this Employment Agreement without
Employer’s prior written consent. Prior consent has been given for the Employee
to continue its consulting with the following clients: South Florida Media Group
and Land Company of Osceola.
Article
3
Place of
Employment
Employee
shall be based at Employer’s principal office at 000 XX 0xx Xxxxxx,
Xxxxx X, Xxxxxx Xxxxx, XX 00000, excluding reasonable travel commensurate with
Employee’s position and duties.
Article
4
Compensation
of Employee
Section
4.1. Base Salary. For
all services rendered by Employee under this Employment Agreement, Employer
agrees to pay Employee an annual base salary of $144,000, which shall be payable
to Employee in such installments, but not less frequently than monthly, as are
consistent with Employee’s practice for its other Employees. Employee’s base
salary shall be reviewed at least once a year by Employer.
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Section
4.2. Incentive
Compensation. In addition to the base salary, Employee shall be entitled
to receive incentive compensation according to a pre-established bonus plan
specific for the Employee, as determined by Employer.
Section
4.3. Reimbursement for
Business Expenses. Employer shall promptly pay or reimburse Employee for
all reasonable business expenses incurred by Employee in performing Employee’s
duties and obligations under this Employment Agreement, but only if Employee
properly accounts for expenses in accordance with Employer’s
policies.
Section
4.4. Stock Options and Other
Stock Awards. The Employee shall be eligible for stock option
grants and other stock awards pursuant to the Company’s 2006 Incentive Stock
Plan, and any successor plan thereto (the “Incentive Stock Plan”) and all rules
of regulation of the Securities and Exchange Commission applicable to stock
option plans then in effect. The number of Stock Options and terms and
conditions of the Stock Options shall be determined by the Employer’s Board of
Directors or the Compensation Committee, if formed.
Article
5
Vacations
and Other Paid Absences
Section
5.1. Vacation Days.
Employee shall be entitled to 20 working days paid vacation each calendar year
during the term of this Employment Agreement. All vacation is accrued during the
calendar year of work, should Employee not take all vacation days in any
calendar year, no days will be carried over to the next year. If the agreement
is terminated during a calendar year, any accrued and not taken vacation will be
paid at the base salary rate, any vacation taken but previously not earned will
not be deducted from any amount due to the Employee.
Section
5.2. Holidays. Employee
shall be entitled to the same paid holidays as authorized by Employer for its
other Employees.
Section
5.3. Sick Days and Personal
Absence Days. Employee shall be entitled to the same number of paid sick
days and personal absence days authorized by Employer for its other
Employees.
Article
6
Life
Insurance
Employer
may, in its sole discretion, maintain in effect during the term of Employee’s
employment a life insurance policy on the life of Employee in such amount as
Employer shall in its sole discretion decide to maintain during the term of this
Employment Agreement. Any proceeds payable under the policy shall be paid to the
beneficiary or beneficiaries designated in writing from time to time by
Employee.
Article
7
Fringe
Benefits
Section
7.1. Employer Employee Benefit
Plans. Employee shall be entitled to participate in and receive benefits
from all of Employer’s Employee benefit plans that currently are maintained by
Employer for its Employees. Employee shall be entitled to participate in and
receive benefits under any retirement plan, profit-sharing plan, or other
Employee benefit plan that Employer establishes for the benefit of its Employees
after the date of this Employment Agreement. No amounts paid to Employee from an
Employee benefit plan shall count as compensation due Employee as base salary or
incentive compensation. Nothing in this Employment Agreement shall prohibit
Employer from modifying or terminating any of its Employee benefit plans in a
manner that does not discriminate between Employee and other Employees of
Employer.
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Article
8
Disability
Section
8.1. Termination Because of a
Disability. Except as may otherwise be required or prohibited by state or
federal law, if because of illness or injury Employee becomes unable to work
full time for Employer for more than forty (40) working days in any twelve month
period (excluding vacation days and holidays), Employer may, in its sole
discretion at any time after the accumulation of such time terminate Employee’s
employment upon written notice to Employee.
Section
8.2. Compensation During
Periods of Disability.
(a) Employee
shall continue to receive Employee’s base salary and incentive compensation
while Employee is unable to work full time, until the earlier of: (i) the
accumulation of forty (40) working days of disability in any 12 month period;
(ii) the date Employee begins receiving disability insurance benefits equal to
Employee base salary and incentive compensation; or (iii) the date Employee
terminates Employee’s employment with Employer because Employee’s health becomes
so impaired that continued performance of Employee’s duties under this
Employment Agreement would be hazardous to Employee’s physical or mental
health.
(b) While
Employee is unable to work full time because of illness or injury and through
the full term of this Employment Agreement, including extensions, Employer shall
maintain for Employee’s benefit all Employee benefit plans in which Employee was
participating at the time Employee was replaced. If Employee is barred from
participating in any Employee benefit plan because of Employee’s disability,
Employer shall pay Employee an amount equal to what Employer would have
contributed on Employee’s behalf to the Employee benefit plan if Employee’s
participation had not been barred.
Section
8.3. Disability
Insurance. Employer may, in its sole discretion, purchase and maintain
disability insurance in force for the benefit of Employee throughout the term of
this Employment Agreement, including extensions. The policy shall provide that
if Employer fails to make a premium payment, Employee shall have the right in
Employee’s sole discretion to advance such funds as may be required to maintain
the policy in force and shall thereafter be entitled to recover amounts paid
from Employer.
Article
9
Termination
of Employment
Section
9.1. Term of
Employment. Employee’s employment shall commence on the date of execution
by Employer and shall continue for two (2) years (“end-of-employment date”),
unless extended or terminated sooner, as provided by this article of the
Employment Agreement.
Section
9.2. Extension of
Employment. On the end-of-employment date and every two (2) years
thereafter, Employee’s employment with Employer automatically shall be extended
for an additional two (2) years unless, at least ninety (90) calendar days prior
to the end-of-employment date, or successive two (2) year anniversary thereof,
Employer or Employee delivers to the other a written notice that Employee’s
employment with Employer is not to be extended, in which event Employer shall
pay Employee pursuant to Section 9.8.
Section
9.3. Termination at Employee’s
Death. Employee’s employment with Employer shall terminate at Employee’s
death.
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Section
9.4. Termination by
Employee. Employee may, but is not obligated to, terminate this
Employment Agreement at any time under the following circumstances:
(a) There is
a change in control of Employer. For purposes of this Agreement, the term
“Change in Control” shall mean:
(i)
Approval by Employer’s shareholders of (x) a reorganization, merger,
consolidation or other form of corporate transaction or series of transactions,
in each case, with respect to which persons who were Employer’s shareholders
immediately prior to such reorganization, merger or consolidation or other
transaction do not, immediately thereafter, own more than 50% of the combined
voting power entitled to vote generally in the election of directors of the
reorganized, merged or consolidated company’s then outstanding voting
securities, in substantially the same proportions as their ownership immediately
prior to such reorganization, merger, consolidation or other transaction, or (y)
Employer’s liquidation or dissolution or (z) the sale of all or substantially
all of Employer’s assets (unless such reorganization, merger, consolidation or
other corporate transaction, liquidation, dissolution or sale is subsequently
abandoned);
(ii)
Individuals who, as of the date of this Agreement, constitute the Board (the
“Incumbent Board”) cease for any reason to constitute at least a majority of the
Board, provided that any person becoming a director subsequent to the date of
this Agreement whose election, or nomination for election by Employer’s
shareholders, was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board (other than an election or nomination of an
individual whose initial assumption of office is in connection with an actual or
threatened election contest relating to the election of Employer’s directors, as
such terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Securities Exchange Act) shall be, for purposes of this Agreement, considered as
though such person were a member of the Incumbent Board; or
(b) Employee
is assigned duties that are significantly different than those described in this
Employment Agreement, or duties assigned Employee by this Employment Agreement
are eliminated or transferred to someone else.
(c) Employee
is removed from any of the positions described in Section 2.1 of this Employment
Agreement (other than by Employer for cause).
(d) Employee’s
fringe benefits or other compensation are materially reduced.
(e) Employer
fails to have a successor assume this Employment Agreement.
(f) Employer
becomes insolvent or files a bankruptcy petition.
Section
9.5. Termination by
Employer.
(a) Termination for
Cause. Employer may terminate Employee’s employment for
cause.
(b) For
purposes of this Agreement, the term “Cause” shall mean (i) an action or
omission of the Employee which constitutes a willful and material breach of, or
failure or refusal (other than by reason of his disability) to perform his
duties under, this Agreement which is not cured within fifteen (15) calendar
days after receipt by the Employee of written notice of same, (ii) fraud,
embezzlement, misappropriation of funds or breach of trust in connection with
his services hereunder, (iii) conviction of any crime which involves dishonesty
or a breach of trust, or (iv) gross negligence in connection with the
performance of the Employee’s duties hereunder, which is not cured within
fifteen (15) calendar days after written receipt by the Employee of written
notice of same, or (v) Employee violates Article 10 or Article 11 of this
Employment Agreement.
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Section
9.6. Notice of
Termination. Any termination of Employee’s employment by Employer or
Employee must be communicated to the other party by a written notice of
termination. The notice must specify the provision of this Employment Agreement
authorizing the termination and must set forth in reasonable detail the facts
and circumstances providing the basis for termination of Employee’s employment.
The Employee shall have the right to address the Board regarding the acts set
forth in the notice of termination.
Section
9.7. Date Termination Is
Effective. If Employee’s employment terminates because this Employment
Agreement expires, then Employee’s employment will be considered to have
terminated on that expiration date. If Employee’s employment terminates because
of Employee’s death, then Employee’s employment will be considered to have
terminated on the date of Employee’s death. If Employee’s employment is
terminated by Employee, then Employee’s employment will be considered to have
terminated on the date that notice of termination is given. If Employee’s
employment is terminated by Employer for cause, then Employee’s employment will
be considered to have terminated on the date specified by the notice of
termination. If, within thirty (30) calendar days after a notice of termination
is given, the party receiving the notice notifies the other party that there is
a dispute concerning the termination, then Employee’s employment will not be
considered to have terminated, and Employer shall continue to compensate
Employee pursuant to this Employment Agreement, until the dispute is ended by a
written agreement between the parties or a final judgment, order, or decree of a
court of competent jurisdiction. A judgment, order, or decree of a court of
competent jurisdiction will be considered final only if the time for appealing
the decision has expired and no notice of appeal has been filed.
Section
9.8. Compensation Following
Termination.
(a) If
Employee’s employment is terminated by Employer for cause, or by Employee other
than pursuant to Section 9.4, Employer shall pay Employee/Employee’s then
current base salary through the date employment is terminated, and Employer
shall have no further obligations to Employee under this Employment
Agreement.
(b) If
Employee’s employment is terminated by Employer other than for cause, or by
Employee pursuant Section 9.4, Employer shall pay Employee Employee’s then
current base salary through the date employment is terminated and any legal fees
and expenses incurred by Employee to enforce Employee’s rights under this
Employment Agreement. In addition, Employer shall pay Employee as liquidated
damages an amount equal to the sum of Employee’s then current annual base salary
plus the annualized amount of incentive compensation paid to Employee within the
last year before the date Employee’s employment was terminated, multiplied by
the number of full and partial years remaining in the term of this Employment
Agreement.
Article
10
Confidential
Information
Section
10.1. Confidential
Information Defined. “Confidential Information” as used in this
Employment Agreement shall mean any and all technical and non-technical
information belonging to, or in the possession of, Employer or its officers,
directors, Employees, affiliates, subsidiaries, clients, vendors, or Employees,
including without limitation, patent, trade secret, and proprietary information;
techniques, sketches, drawings, models, inventions, know-how, processes,
apparatus, equipment, algorithms, source codes, object codes, software programs,
software source documents, and formulae related to Employer’s business or any
other current, future and/or proposed business, product or service contemplated
by Employer; and includes, without limitation, all information concerning
research, experimental work, development, design details and specifications,
engineering, financial information, procurement requirements, purchasing,
manufacturing, customer lists, vendor lists, business forecasts, sales and
merchandising, and marketing plans or similar information.
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Section
10.2 Disclosures.
Employee agrees that it shall, at no time during or after termination of this
Employment Agreement, directly or indirectly make use of, disseminate, or in any
way disclose Confidential Information to any person, firm or business, except to
the extent necessary for performance of this Employment Agreement. Employee
agrees that it shall disclose Confidential Information only to Employer’s other
Employees who need to know such information and who have previously agreed to be
bound by the terms and conditions of a substantially similar confidentiality
provision and shall be liable for damages for the intentional or negligent
disclosure of Confidential Information. Employee’s obligations with
respect to any portion of Confidential Information shall terminate only when
Employee has documented to Employer that (a) such information was lawfully in
the public domain at the time it was communicated to Employee by Employer; or
(b) the communication was in response to a valid order by a court of competent
jurisdiction or was necessary to establish the rights of Employer under this
Employment Agreement.
Section
10.3. Survival. This
Article 10 shall survive any termination of this Agreement and all extended
periods.
Article
11
Noncompetition
Agreement
Section
11.1. Agreement Not To
Compete. For two (2) years after Employee’s employment with Employer
terminates, including employment following the termination of this Employment
Agreement, Employee agrees not to directly or indirectly own, manage, control,
or operate; serve as an officer, director, partner, employee or consultant of;
have any direct or indirect financial interest in; or assist in any way; any
person or entity that competes with any business conducted by Employer or any of
Employer’s affiliates or subsidiaries in any geographic region in which Employer
conducts business.
Section
11.2. Competitive
Businesses. For purposes of this Article 11, a competitive business shall
be any person or entity directly or indirectly engaged in the manufacturing,
import, export, sale or distribution of non-alcoholic beverages.
Section
11.3. Ownership of Public
Corporation No Violation. Employee will not be considered to have
violated this provision merely because Employee owns no more than five percent
(5%) of the stock of any publicly held corporation.
Section
11.4. Survival. This
Article 11 shall survive any termination of this Agreement and all extended
periods.
Section
11.5. Extension of Agreement
Not To Compete. At Employer’s discretion, the Employer can cause Employee
to extend the period of the agreement not to compete by paying in advance the
Employee 30% of the Employee’s last annual base salary and bonuses per year of
extension. The Employer can cause the extension for a total of 3 annual
periods.
Article
12
Notices
Any
notice given under this Employment Agreement to either party shall be made in
writing. Notices shall be deemed given when delivered by hand or when mailed by
registered or certified mail, return receipt requested, postage prepaid, and
addressed to the party at the address set forth below.
Employee’s
address: Xxxxxxx
Xxxxxxx
000
Xxxxxx Xxxxx Xxxxx
Xxxxxx
Xxxxx, XX 00000
Employer’s
address: Celsius
Holdings, Inc.
000 XX
0xx
Xxxxxx, Xxxxx X
Xxxxxx Xxxxx, XX 00000
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Each
party may designate a different address for receiving notices by giving written
notice of the different address to the other party. The written notice of the
different address will be deemed given when it is received by the other
party.
Article
13
Binding
Agreement
Section
13.1. Employer’s
Successors.
(a) The
rights and obligations of Employer under this Employment Agreement shall inure
to the benefit of and shall be binding in all respects upon the successors and
assigns of Employer.
(b) Employer
shall require any direct or indirect successor (by purchase, merger,
consolidation, or otherwise) of all or substantially all of Employer’s stock,
business and/or assets to expressly agree to assume Employer’s obligations under
this Employment Agreement and perform them in the same manner and to the same
extent as Employer would have been required to do if no succession had occurred.
The agreement must be in a form and substance satisfactory to
Employee.
(c) If
Employer fails to obtain such an agreement before the effective date of the
succession, Employer’s failure will be considered a breach of this Employment
Agreement, and Employee shall be entitled to the immediate payment of the amount
of money that Employee would have been entitled to if Employer had terminated
Employee’s employment other than for cause in accordance with the terms of
Section 9.8(c) of this Employment Agreement, calculated as though Employee’s
employment had terminated on the effective date of the
succession. However, Employer’s failure to obtain such agreement
shall not affect said successor’s obligations pursuant to paragraph 13.1(a)
above.
Section
13.2. Employee’s
Successors. This Employment Agreement shall inure to the benefit and be
enforceable by and upon Employee’s personal representatives, legatees, and
heirs. If Employee dies while amounts are still owed, such amounts shall be paid
to Employee’s legatees or, if no such person or persons have been designated, to
Employee’s estate.
Article
14
Waivers
The
waiver by either party of a breach of any provision of this Employment Agreement
shall not operate or be construed as a waiver of any subsequent
breach.
Article
15
Entire
Agreement
Section
15.1. No Other
Agreements. This instrument contains the entire agreement of the parties.
The parties have not made any agreements or representations, oral or otherwise,
express or implied, pertaining to the subject matter of this Employment
Agreement other than those specifically included in this Employment
Agreement.
Section
15.2. Prior Agreements.
This Employment Agreement supersedes any prior agreements pertaining to or
connected with or arising in any manner out of the employment of Employee by
Employer. All such prior agreements are terminated and are of no force or effect
whatsoever.
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Article
16
Amendment
of Agreement
No change
or modification of this Employment Agreement shall be valid unless it is in
writing and signed by the party against whom the change or modification is
sought to be enforced. No change or modification by Employer shall be effective
unless it is approved by Employer’s Board of Directors and signed by an officer
specifically authorized to sign such documents.
Article
17
Severability
of Provisions
If any
provision of this Employment Agreement is invalidated or held unenforceable, the
invalidity or unenforceability of that provision or provisions shall be deemed
modified or severed only to the minimum extent necessary to make said
provision(s) valid and enforceable while maintaining the intent of said
provision(s). No such modification shall affect the validity or
enforceability of any other provision of this Employment Agreement.
Article
18
Assignment
of Agreement
Employer
shall not assign this Employment Agreement without Employee’s prior written
consent, but failure to obtain such consent shall not affect said assignee’s
obligations pursuant to paragraph 13.1(a) above, which consent will not be
unreasonably withheld.
Article
19
Governing
Law, Venue & Attorneys Fees
All
questions regarding the validity and interpretation of this Employment Agreement
shall be governed by and construed and enforced in all respects in accordance
with the laws of the State of Florida. Venue for any action arising
in any manner out of the Employee’s employment, this Employment Agreement, or
any of the terms contained herein shall be the Federal and or State courts
located in Palm Beach County, Florida, regardless of where this Employment
Agreement is to be performed. In the event either party engages legal
counsel to enforce any provision contained in this Employment Agreement, the
prevailing party shall be entitled to all reasonable attorneys fees,
investigative expenses, costs, and court costs, whether or not a suit is
actually filed, but including all levels of appeal.
[signature
page follows]
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IN
WITNESS WHEREOF, the parties have executed this Employment Agreement in
duplicate on the date and year first above written.
EMPLOYEE:
/s/ Xxxx
Xxxxxxx
Xxxx Xxxxxxx
EMPLOYER:
Celsius
Holdings, Inc. and Celsius, Inc.
By: /s/
Xxxxxxx X.
Xxxxx
Xxxxxxx
X. Xxxxx, Chief Executive Officer
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