Exhibit 10.1
EMPLOYMENT AGREEMENT
AGREEMENT made as of this 1st day of April 1996 by and between THE STOCK
SHOP, LLC, a Montana Limited Liability Company, having an office at 0000 Xxx
Xxxxx Xxxx, Xxxx X, Xxxxxxxxxxxx, Xxxxxxx 00000 (the "Employer") and Xxxxxx
Xxxxxx, an individual residing at 0000 Xxxxxxxx Xxxxxxx, X.X. Xxx 000,
Xxxxxxxxxxxx, Xxxxxxx 00000 (the "Employee").
W I T N E S S E T H:
WHEREAS, the Employer desires to employ the Employee as Co-Chairman and
President; and
WHEREAS, the Employee is willing to be employed as Co-Chairman and
President in the manner provided for herein, and to perform the duties of such
employment 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 Employee. The Employer hereby employs the
Employee as Co-Chairman and President of the Employer and the Employee hereby
accepts such employment. During the term hereof, the Employee shall devote
all of his business time and efforts to the Employer.
2. Duties. The Employee shall serve Employer and shall perform
such services and duties and have such powers as may be prescribed by the
Board of Directors (the "Board") , or the board's designee. The Employee
shall report to and be subject to the direction and control of the Board or
its designee.
3. Consideration.
a. The Employee shall be paid a salary at the rate of $48,000
per year, less applicable withholding taxes and other payroll deductions
required by law, payable in accordance
1
with Employer's customary payroll practices.
b. The Employer shall include the Employee in any health
insurance and other benefit programs available to all its employees.
c. Employee shall receive an annual bonus of $7,500 which
shall be payable only if the Company's revenues exceed $600,000 per year,
which bonus, at Employee's option, shall be convertible to shares of stock in
Employer or any successor thereto under terms to be determined by the Board.
4. Term. This Agreement shall expire on the third Anniversary
hereof. It shall automatically renew for successive one year terms unless one
of the parties hereto notifies the other party in writing of its intention
not to renew at least sixty (60) days prior to the then next termination date.
5. Termination.
a. Expiration. This Agreement shall terminate upon its
expiration pursuant to its terms, as set forth in paragraph 4 above.
b. For Cause. The Employer may terminate this Agreement and
the Employee's employment hereunder upon written notice for cause. For
purposes hereof, "Cause" shall mean (i) failing to carry out in a competent,
workmanlike and diligent manner the business of the Employer as determined by
the Board, (ii) engaging in conduct which is not in the best interests of the
Employer, financially or otherwise (including but not limited to conduct that
constitutes competitive activity), (iii) breach of this Agreement in any
material manner, (iv) conviction of a crime (other than routine traffic
offenses), (v) habitual abuse of alcohol or prescription drugs or (vi) abuse
of controlled substances.
c. Other. This Agreement automatically shall terminate upon
the death of the Employee, except that the Employees's estate shall be
entitled to receive any amount accrued under paragraph 3(a) above for the
period prior to the
2
Employees's death and any other amount to which the Employee was entitled to
the time of his death.
6. Expenses. The Employee shall be reimbursed for all reasonable,
actual out-of-pocket expenses incurred in the performance of the Employee's
duties hereunder, provided such expenses are acceptable to the Employer, and
that the Employee shall submit to the Employer detailed expense reports and
receipts with respect thereto in order to receive such reimbursement.
7. Vacation. The Employee shall be entitled to receive three
weeks paid vacation time during each year of employment on dates to be agreed
upon between the Employer and the Employee.
8. Confidentiality. At no time shall the Employee disclose to
anyone any confidential or secret information (not already constituting
information available to the public) of the Employer and/or its affiliates
concerning (a) internal affairs or proprietary business operations of the
Employer and/or its affiliates or (b) any trade secrets, new product
developments, patents, or unique processes or methods.
9. Covenant Not to Compete. The Employee will not, at any time,
anywhere in the world, during the term of this Agreement, and for one (1)
year thereafter, either directly or indirectly, engage in, with or for any
enterprise, institution, business, or company, whether or not for profit,
which is competitive with the business of the Employer and/or its affiliates
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. However the ownership of, by the Employee, his spouse or his
children, of not more than four percent (4%) of the total debt or equity
capital of any such competitive enterprise or business, where the stock is
listed on a national securities
3
exchange or on the National Association of Securities Dealers, Inc.
Automated Quotation System ("NASDAQ"), shall not be deemed in violation of
the covenants contained in this paragraph.
10. Proprietary Rights - Ownership of Inventions. The Employee
acknowledges that in the event the Employee creates or invents any products
or technology or improves any existing products or technology of the Employer
and/or its affiliates during the term of this Agreement, all patents or other
proprietary rights shall be the exclusive property of the Employer and/or its
affiliates. Employee agrees to execute any documents required to confirm the
Employer's and/or its affiliates' ownership of all rights in and to any
inventions of the Employee made during the term of this Agreement. The
Employee agrees not to challenge the Employer's and/or its affiliates'
ownership of any such invention or the validity of any of the Employer's
and/or its affiliates' patents or other rights relating to such inventions.
11. Entire Agreement. This Agreement contains the entire agreement
between the parties with respect to the employment contemplated herein and
supersedes any prior agreement or understanding between the Employer and the
Employee with respect to the Employee's employment by the Employer. The
unenforceability of any provision of this Agreement shall not effect the
enforceability of any other provision. This Agreement may not be amended,
modified or changed in any way except by an agreement in writing signed by
the Employee and the Employer. 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.
12. Assignment. This Agreement shall not be assigned to any other
person or entity, except that this Agreement shall be assigned to any
successor or re-organized entity into which the Employer may be re-organized
pursuant to paragraph l.d.2. (ii) of a certain Purchase Agreement by and
among Employer, Employee, Xxxxx Xxxxx and Xxxxxx Xxxx dated as of March 15,
1996.
13. Governing Law. This Agreement and any amendments
4
hereto, and waivers and consents with respect thereto shall be governed by
the internal laws of the state of New York, without regard to the conflict of
laws principles thereof.
14. 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 by telecopier, (with receipt confirmed), provided
that a copy is mailed by registered or certified mail, return receipt
requested; or
c. received by the addressee as sent by express delivery
service (receipt requested) in each case to the appropriate addresses or
telecopier numbers as each party may designate by notice to the other party:
(i) if to the Employer:
The Stock Shop, LLC
0000 Xxx Xxxxx Xxxx, Xxxx X
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxx
Telecopier: 000-000-0000
Telephone: 000-000-0000
With a copy to:
Gersten, Savage, Xxxxxxxxx & Xxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxxxx, Xx., Esq.
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
5
(ii) if to the Employee:
Xxx Xxxxxx
0000 Xxxxxxxx Xxxxxxx X.X. Xxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
IN WITNESS WHEREOF, THE UNDERSIGNED HAVE EXECUTED THIS AGREEMENT THE DAY AND
YEAR FIRST ABOVE WRITTEN.
THE STOCK SHOP, LLC
By: /s/ Xxxxxx Xxxx
----------------------------------
XXXXXX XXXX, Chairman and Member
/s/ Xxxxxx Xxxxxx
----------------------------------
XXXXXX XXXXXX, Employee
6
