EMPLOYMENT AGREEMENT
Exhibit
10.1
EMPLOYMENT AGREEMENT made as
of this 1st day of March 2010 by and between Ciglarette, Inc.
a Nevada corporation, having an office at 00000 Xxxxxxx Xxxxx Xxxx
#000, Xxxxxxxx, XX 00000 (hereinafter referred to as "Employer")
and Xxxxx Xxxxxx, an
individual residing at 00000 Xxxxxxx Xxxxx Xxxx, Xxxxxxxx, XX
00000 (hereinafter referred to as "Employee").
W
I T N E S E T H:
WHEREAS, Employer desires to
employ Employee as the President and CEO; and
WHEREAS, Employee is willing
to be employed as the President and CEO in the manner provided for herein, and
to perform the duties of the President and CEO upon the terms and conditions
herein set forth;
NOW, THEREFORE, in
consideration of the promises and mutual covenants herein set forth it is agreed
as follows:
1. Employment
of the President and CEO. Employer hereby employs
Employee as President and CEO
2. Term.
a. Subject
to Section 9 below and further to Section 2(b) below, the term of this Agreement
shall commence upon the execution hereof (the “Commencement Date”) and expire
three years from such date (“Initial Term”). Each 12-month period
after the end of the initial term forward during the term hereof shall be
referred to as an “Annual Period.”
b. Subject
to Section 10 below, unless the Board of Directors of the Company (the "Board")
of Employer shall determine to the contrary and shall so notify Employee in
writing on or before the end of the Initial Term or any Annual Period or unless
the Employee notifies Employer in writing thirty (30) days before the end of the
Initial Term or any Annual Period of his desire not to renew this Agreement,
then at the end of either the Initial Term or the Annual Period, as the case
maybe, the term of this Agreement shall be automatically extended for one (1)
additional Annual Period to be added at the end of the then current term of this
Agreement.
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3. Duties. The Employee
shall perform those functions generally performed by persons of such title and
position, shall attend all meetings of the stockholders and the Board when
possible and shall perform any and all related duties and shall have any and all
powers as may be prescribed by resolution of the Board, and shall be available
to confer and consult with and advise the officers and directors of Employer at
such times that may be required by Employer. Employee shall report
directly and solely to the Board.
4. Compensation.
(i)
Employee shall be paid a minimum of $500 per month. Employee shall be
paid periodically in accordance with the policies of the Employer during the
term of this Agreement, but not less than monthly.
(ii) Employee
is eligible for an annual bonus, if any, which will be determined and paid in
accordance with policies set from time to time by the Board, in its sole
discretion.
5. Expenses. Employee shall
submit to Employer reasonably detailed receipts or credit card statements with
respect thereto which substantiate the Employee’s expenses. Employee
shall use his own credit cards and be reimbursed each month for his business
expenses.
6. Vacation. Employee shall
be entitled to receive one week vacation time during each year of employment
upon dates agreed upon by Employer. Upon separation of employment,
for any reason, vacation time accrued and not used shall be paid at the salary
rate of Employee in effect at the time of employment separation.
7. Secrecy. At no time shall
Employee disclose to anyone any confidential or secret information (not already
constituting information available to the public) concerning (a) internal
affairs or proprietary business operations of Employer or its affiliates or (b)
any trade secrets, new product developments, patents, programs or programming,
especially unique processes or methods (c) research done on behalf of company
(d) contracts and meetings on behalf of company (e) financial information of the
company.
8.
Covenant
Not to Compete. Employee will
not, at any time, anywhere in the areas where Employer does business during the
term of this Agreement, and for one (1) year thereafter, either directly or
indirectly, engage in, with or for any enterprise, institution, whether or not
for profit, business, or company, competitive with the business of Employer as
such business may be conducted on the date thereof, as a creditor, guarantor, or
financial backer, stockholder, director, officer, consultant, advisor, employee,
member, inventor, producer, director, or otherwise of or through any
corporation, partnership, association, sole proprietorship or other entity;
provided, that an investment by Employee, his spouse or his children is
permitted if such investment is not more than five percent (5%) of the total
debt or equity capital of any such competitive enterprise or business and
further provided that said competitive enterprise or business is a publicly held
entity whose stock is listed and traded on an international or national stock
exchange.
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9.
Termination.
a. Termination by
Employer
(i)
Employer may terminate this Agreement immediately for Cause. For
purposes hereof, "Cause" shall mean (A) engaging by the Employee in conduct that
constitutes activity in competition with Employer; (B) the conviction of
Employee for the commission of a felony against the Employer; and/or (C) the
habitual abuse of alcohol or controlled substances. In no event
shall alleged incompetence of Employee in the performance of Employee's duties
be deemed grounds for termination for Cause.
(ii) This
agreement automatically shall terminate upon the death of Employee, except that
Employee's estate shall be entitled to receive any amount accrued under Section
4 for the period prior to Employee's death and any other amount to which
Employee was entitled of the time at his death.
b. Termination by Employee or Employer
without Cause
(i)
Employee or Employer shall have the right to terminate Employee’s employment
under this Agreement upon thirty (30) days' notice to either party.
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10.
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Consequences
of Breach by Employer;
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Employment
Termination
a. If
this Agreement is terminated pursuant to Section 9(b)(i) hereof, or if Employer
shall terminate Employee's employment under this Agreement in any way that is a
breach of this Agreement by Employer, the following shall apply:
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(i) Employee
shall be entitled to payment of any previously declared bonus and additional
compensation as provided in Section 4 above.
b. In
the event that Employee’s employment is terminated for any of the following (i)
for cause as set forth in Section 9(a)(i) of this Agreement, (ii) the expiration
of the term of this Agreement, or (iii) resignation by the Employee in
accordance with Section 9(b)(i), then the provisions of Section 8 shall apply to
Employee.
11. Remedies. Employer
recognizes that because of Employee's special talents, stature and opportunities
in the Research and Investment market, in the event of termination by Employer
hereunder (except under Section 9(a)(i) or (ii), or in the event of termination
by Employee under Section 9(b)(i) before the end of the agreed term), the
Employer acknowledges and agrees that the provisions of this Agreement regarding
further payments of base salary, bonuses and the exercisability of rights
constitute fair and reasonable provisions for the consequences of such
termination, do not constitute a penalty, and such payments and benefits shall
not be limited or reduced by amounts' Employee might earn or be able to earn
from any other employment or ventures during the remainder of the agreed term of
this Agreement.
12. Excise
Tax. In the event that any payment or benefit received or to be
received by Employee in connection with a termination of his employment with
Employer would constitute a "parachute payment" within the meaning of Internal
Revenue Code Section 280G or any similar or successor provision to 280G and/or
would be subject to any excise tax imposed by Internal Revenue Code Section 4999
or any similar or successor provision then Employer shall assume all liability
for the payment of any such tax and Employer shall immediately reimburse
Employee on a "grossed-up" basis for any income taxes attributable to Employee
by reason of such Employer payment and reimbursements.
13. Arbitration. Any
controversies between Employer and Employee involving the construction or
application of any of the terms, provisions or conditions of this Agreement,
save and except for any breaches arising out of Sections 7 and 8 hereof, shall
on the written request of either party served on the other be submitted to
arbitration. Such arbitration shall comply with and be governed by
the rules of the American Arbitration Association. An arbitration
demand must be made within one (1) year of the date on which the party demanding
arbitration first had notice of the existence of the claim to be arbitrated, or
the right to arbitration along with such claim shall be considered to have been
waived. An arbitrator shall be selected according to the procedures
of the American Arbitration Association. The cost of arbitration
shall be borne by the losing party unless the arbitrator shall determine
otherwise. The arbitrator shall have no authority to add to, subtract
from or otherwise modify the provisions of this Agreement, or to award punitive
damages to either party.
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14. Attorneys'
Fees and Costs. If any action at law or in equity is necessary
to enforce or interpret the terms of this Agreement, the prevailing party shall
be entitled to reasonable attorney's fees, costs and necessary disbursements in
addition to any other relief to which he may be entitled.
15. Entire
Agreement; Survival. This Agreement contains the entire
agreement between the parties with respect to the transactions contemplated
herein and supersedes, effective as of the date hereof any prior agreement or
understanding between Employer and Employee with respect to Employee's
employment by Employer. The unenforceability of any provision of this Agreement
shall not effect the enforceability of any other provision. This
Agreement may not be amended except by an agreement in writing signed by the
Employee and the Employer, or any waiver, change, discharge or modification as
sought. Waiver of or failure to exercise any rights provided by this
Agreement and in any respect shall not be deemed a waiver of any further or
future rights. The provisions of Sections 4, 7, 8, 9(a)(ii), 10, 11,
12, 13, 14, 16, 17, 18 and 19 shall survive the termination of this
Agreement.
16. Assignment. This Agreement
shall not be assigned to other parties.
17.
Governing
Law. This Agreement
and all the amendments hereof, and waivers and consents with respect thereto
shall be governed by the internal laws of the State of Florida, without regard
to the conflicts of laws principles thereof.
18. Notices. All
notices, responses, demands or other communications under this Agreement shall
be in writing and shall be deemed to have been given when
a. delivered
by hand;
b. sent
be telex or telefax, (with receipt confirmed), provided that a copy is mailed by
registered or certified mail, return receipt requested; or
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c. received
by the addressee as sent by express delivery service (receipt requested) in each
case to the appropriate addresses, telex numbers and telefax numbers as the
party may designate to itself by notice to the other parties:
(i) if to the
Employer:
00000 Xxxxxxx Xxxxx Xxxx
#000
Xxxxxxxx, XX 00000
Telefax:
Telephone: (000)-000-0000
Copy
to: Xxxxxx
and Gaclin, Esq
0000 Xxxxx 0, 0xx
Xxxxx
Xxxxxxxx, Xxx Xxxxxx
00000
Attention:Xxxxx Xxxxxx,
Esq.
Telefax: (000) 000-0000
Telephone: (000) 000-0000
(ii) if
to the Employee:
Xxxxx Xxxxxx
0000
Xxxxxxx Xxxxx Xxxx # 000
Xxxxxxxx
XX-00000
Telefax:
Telephone: (000)-000-0000
19. Severability
of Agreement. Should any part of this Agreement for any reason
be declared invalid by a court of competent jurisdiction, such decision shall
not affect the validity of any remaining portion, which remaining provisions
shall remain in full force and effect as if this Agreement had been executed
with the invalid portion thereof eliminated, and it is hereby declared the
intention of the parties that they would have executed the remaining portions of
this Agreement without including any such part, parts or portions which may, for
any reason, be hereafter declared invalid.
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IN WITNESS WHEREOF, the undersigned
have executed this agreement as of the day and year first above
written.
Employee
By:________________________
Xxxxx
Xxxxxx
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