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EXHIBIT 10.85
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into, and
shall be binding this 24th day of December, 1999, by and between Magnifique
Parfumes & Cosmetics, Inc., a Florida corporation ("Employer") and Xxxx Xxxxx
("Executive").
W I T N E S S E T H:
WHEREAS, Employer, is engaged in the business of selling perfumes and
cosmetics on a discount basis; and
WHEREAS, Executive is experienced in the management and operation of
such business and is professionally qualified to perform such services for the
Employer; and
WHEREAS, Employer desires to retain the services of the Executive; and
WHEREAS, Executive is desirous of obtaining employment with the
Employer on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Employer and Executive agree as follows:
1. Recitals, Representations and Warranties. The foregoing recitals are
true and correct and are incorporated herein by this reference. In addition to
the foregoing recitals, Executive represents that he has not been convicted of
any crime, has not been declared insolvent and has not filed for bankruptcy. In
addition to the foregoing recitals, Employer represents and warrants that the
individual executing this Agreement has authority to do so.
2. Employment. In exchange for the Compensation (as hereinafter
defined) and subject to the other terms and conditions hereinafter set forth,
Employer hereby employs Executive, as its President - Retail Division, to
perform the Executive Duties (as hereinafter defined) and Executive hereby
accepts such employment.
3. Duties. The Executive shall perform such executive and
administrative services in the running of the business of the Employer as the
Employer's Board of Directors and/or the President/CEO may assign to the
Executive during the Term (as hereinafter defined).
a. Performance of Executive Duties & Adherence to Policies. During
the Term, Executive shall render the Executive Duties exclusively for Employer,
shall perform the Executive Duties to the best of his ability and shall operate
Employer's business efficiently and profitably adhering, at all times, to the
policies of the Employer and Perfumania.
4. Term. The term of the Agreement shall commence on December 24, 1999
and shall expire on December 24, 2002.
5. Compensation. In consideration of and as compensation in full for
Executive's performance of the Executive Duties hereunder, Employer agrees to
compensate Executive as follows:
a. Salary. During the term of this Agreement, Employer shall pay
Executive a gross annual salary of Two Hundred Fifteen Thousand Dollars
($215,000)("Salary"). Such Salary shall be paid by Employer in accordance with
Employer's regular payroll practices. Employer shall be entitled to deduct or
withhold from all Salary payable hereunder all amounts required to be deducted
or withheld from same pursuant to state or federal law.
b. Stock Option Plan:
(1) Executive shall be granted 150,000 options of Perfumania,
Inc., at a price equal to the price as of November 1, 1999. Such options shall
vest immediately.
(2) At the discretion of the CEO, Executive may be granted
additional options.
c. Expense Reimbursement & Insurance. Executive shall be reimbursed
for business expenses and receive full health, disability and life insurance.
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d. Vacation. Employee shall be entitled to take up to twenty (20)
working days of vacation per twelve (12) month period during the Term.
e. Automobile allowance. Executive shall be entitled to a monthly
automobile allowance of $500.
f. Cellular Telephone. Employee shall be entitled to the use of one
portable cellular telephone.
g. Increases In Salary. On August 12, 2000, Executive's salary
shall be increased to $225,000, on August 12, 2001, Executive's salary shall be
increased to $250,000, and on August 12, 2002, Executive's salary shall be
increased to $275,000.
6. Early Termination of Contract.
a. Early Termination. To the extent that the Company shall decide
to terminate this agreement prior to December 24, 2002, Executive shall be
entitled to compensation as defined in paragraph 5 (including salary, stock
plan, insurance coverage, automobile allowance and cellular telephone) for the
greater of twelve months or the remainder of the Term of the Agreement as if
Executive was still employed and this agreement was in full effect. A
termination of this Agreement shall be deemed to happen upon a significant
change in Executive's duties and/or title and/or to the extent that providing
such services would require a move from South Florida.
b. Change in Control. To the extent that Employer undergoes a
significant change in control, is acquired by another organization accompanied
by a change in senior management, or merges with another organization
accompanied by a change in senior management, all items under Section 5
(including salary, stock plan, insurance coverage, automobile allowance,
cellular telephone and any other unexercised options), shall be doubled for the
greater of the duration of this Agreement or 24 months.
7. The performance of this Agreement shall be unconditionally
guaranteed by Perfumania, Inc.
8. Miscellaneous.
a. Notices. All notices, demands or other communications given
hereunder shall be in writing and shall be deemed to have been duly given only
upon hand delivery thereof or upon the first business day after mailing by
United States registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
To Employer: Magnifique Parfumes & Cosmetics, Inc.
00000 X.X. 000 Xxxx
Xxxxx, Xxxxxxx 00000
To Executive: Xxxx Xxxxx
00000 XX 00xx Xxxxxx
Xxxxxxxx Xxxxx, Xxxxxxx 00000
or to such other address or such other person as any party shall designate, in
writing, to the other for such purposes and in the manner hereinabove set forth.
b. Accuracy of Statements. No representation or warranty contained
in this Agreement, and no statement delivered or information supplied to any
party pursuant hereto, contains an untrue statement of material fact or omits to
state a material fact necessary in order to make the statements or information
contained herein or therein not misleading. The representations and warranties
made in this Agreement will be continued and will remain true and complete in
all material respects and will survive the execution of the transactions
contemplated hereby.
c. Entire Agreement. This Agreement sets forth all the promises,
covenants, agreements, conditions and understandings between the parties hereto,
and supersedes all prior and contemporaneous agreements, understandings,
inducements or conditions, expressed or implied, oral or written, except as
herein contained.
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d. Binding Effect; Survival & No Assignment. This Agreement shall
be binding upon the parties hereto, their heirs, administrators, successors and
assigns. This Agreement shall survive and remain effective during any bankruptcy
of the Employer. Executive may not assign or transfer his interest herein, or
delegate his Executive Duties hereunder, without the written consent of
Employer. Any assignment or delegation of duties in violation of this provision
shall be null and void.
e. Amendment. The parties hereby irrevocably agree that no
attempted amendment, modification, termination, discharge or change
(collectively, "Amendment") of this Agreement shall be valid and effective,
unless the parties shall agree in writing to such Amendment.
f. No Waiver. No waiver of any provision of this Agreement shall be
effective unless it is in writing and signed by the party against whom it is
asserted, and any such written waiver shall only be applicable to the specific
instance to which it relates and shall not be deemed to be a continuing or
future waiver.
g. Gender and Use of Singular and Plural. All pronouns herein shall
be deemed to refer to the masculine, feminine, neuter, singular or plural, as
the identity of the party or parties, or their personal representatives,
successors and assigns may require.
h. Counterparts. This Agreement and any amendments may be executed
in one or more counterparts, each of which shall be deemed an original, but all
of which together will constitute one and the same instrument.
i. Headings. The article and section headings contained in this
Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of the Agreement.
j. Arbitration & Governing Law. Any controversy, claim or dispute
arising out of or relating to this Agreement and/or Executive's employment with
Employer shall be settled by arbitration in accordance with applicable rules of
the American Arbitration Association and judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. This
arbitration clause shall be exactly as the arbitration clause signed by all
Perfumania employees. This Agreement shall be construed in accordance with the
laws of the State of Florida and any proceeding arising between the parties in
any manner pertaining or related to this Agreement shall, to the extent
permitted by law, be held in Dade County, Florida.
k. Further Assurances. The parties hereto will execute and deliver
such further instruments and do such further acts and things as may be
reasonably required to carry out the intent and purposes of this Agreement.
l. No Third Party Beneficiary. This Agreement is made solely and
specifically among and for the benefit of the parties hereto, and their
respective successors and assigns subject to the express provisions hereof
relating to successors and assigns, and no other person shall have any rights,
interest or claims hereunder or be entitled to any benefits under or on account
of this Agreement as a third-party beneficiary or otherwise.
m. Severability. This Agreement is intended to be performed in
accordance with, and only to the extent permitted by, all applicable laws,
ordinances, rules, and regulations of the jurisdiction in which the parties do
business. If any provision of this Agreement, or the application thereof to any
person or circumstances shall, for any reason or to any extent, be invalid or
unenforceable, the remainder of this Agreement and the application of such
provision to other persons or circumstances shall not be affected thereby, but
rather shall be enforced to the greatest extent permitted by law.
n. Attorneys' Fees. In connection with any proceeding arising out
of this Agreement, the prevailing party shall be entitled to recover costs and
attorneys' fees, through all appeals, from the other party.
o. Renegotiation. To the extent that Employer will make a
significant acquisition or merger, this Agreement shall be renegotiated at terms
no less favorable than this Agreement.
p. Change in Control. To the extent that Employer undergoes a
significant change in control, is acquired by another organization accompanied
by a change in senior management, or merges with another organization
accompanied by a change in senior management, all items under Section 5 and
Section 6 above shall apply.
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IN WITNESS WHEREOF, Employer and Executive have executed this Agreement
as of the date first above written.
WITNESSES: GUARANTOR:
By:
/s/ Xxxx Xxxxxx
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PERFUMANIA, INC.
EMPLOYER:
By:
/s/ Xxxx Xxxxxx
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MAGNIFIQUE PARFUMES & COSMETICS, INC.
EXECUTIVE:
By:
/s/ Xxxx Xxxxx
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XXXX XXXXX
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