EXHIBIT 10.1
[Xxxxxxxxx & Xxxx Letterhead]
September 12, 2001
Xx. Xxxxxxx X. Xxxxx
00 Xxxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Dear Xxxx:
Xxxxxxxxx & Xxxx, Inc. (the "Company") is pleased to offer you employment
in the position of Chief Marketing Officer. This letter and your response
constitute the Agreement between you and the Company concerning the terms and
conditions of that employment.
1. Employment and Position. Employment will commence on September 17,
2001, or such earlier date to which you and the Company agree. You will be
employed on a full-time basis as Chief Marketing Officer, reporting to the Chief
Executive Officer of the Company. Your duties will include those intrinsic to
your position and such other duties, reasonably consistent with your position,
as may be assigned to you from time to time.
You will be expected to devote your full business time and your best
professional efforts to the performance of your duties and responsibilities for
the Company and to abide by all Company policies and procedures, as in effect
from time to time.
2. Compensation and Benefits.
Signing Bonus. The Company shall pay you a one-time signing bonus of $10,000
within one week of your commencement of employment with the Company.
Base Salary. During employment, the Company will pay you a base salary at the
rate of $180,000 per year, payable in accordance with the regular payroll
practices of the Company and subject to increase from time to time by the
Company in its discretion.
Bonuses. You will be eligible to earn a bonus of up to $12,500 per quarter (to a
maximum of $50,000 per year) during employment. The amount of any bonus awarded
you shall be based on quarterly objectives determined by the Company after
consultation with you. Objectives may include, among others, sales, operating
profit, budget, customer house file growth and development of new marketing
program targets.
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Stock Option. The Company will grant you an option to purchase 50,000 shares of
its common stock (the "Option"), subject to the approval of the Company's Board
of Directors Compensation Committee. The Option will vest during your employment
in three equal increments, on the first three anniversaries of the date of
grant, and will have an exercise price equal to the fair market value of the
Company's common stock on the date the Option is granted. The Option will be
subject to the terms and conditions of the Company's stock option plan as in
effect from time to time (the "Plan") and the terms and conditions of the stock
option certificate and any stock restriction agreement and other provisions
generally applicable to options granted to Company employees. Option vesting
shall accelerate on a change of control, as defined in the Plan.
Employee Benefit Plans. You will be entitled to participate in all employee
benefit plans from time to time in effect generally for Company employees,
subject to plan terms and applicable Company policies.
Vacation. You will be entitled to three weeks of paid vacation per year, subject
to Company policies as in effect from time-to-time.
Business Expenses. The Company will pay or reimburse you for all reasonable
business expenses incurred or paid by you in the performance of your duties and
responsibilities for the Company, subject to Company reimbursement policies as
in effect from time to time.
Withholding. All payments made by the Company under this Agreement shall be
reduced by any tax or other amounts required to be withheld by the Company under
applicable law.
3. Termination of Employment. Employment shall continue until terminated
by you or the Company as follows:
Termination by You. You may terminate your employment upon sixty days' written
notice.
Termination by the Company. The Company may terminate your employment other than
for Cause or disability upon notice to you, in which event, it will provide you
three months' salary continuation if the termination occurs after you have been
continuously employed by the Company for three months or six months' salary
continuation if the termination occurs after you have been continuously employed
by the Company for twelve months. In the event you become disabled from working
for more than 90 days in any twelve month period, the Company may elect to
terminate your employment by written notice.
The Company may terminate your employment for Cause upon notice to you. "Cause"
means your failure to perform, or serious negligence in performance, of your
duties to the Company or its Affiliates; breach of your obligations under
Section 4 of this Agreement; or serious misconduct that could be harmful to the
business or reputation of the Company or any of its Affiliates.
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For purposes of this Agreement, "Affiliates" means all persons and entities
directly or indirectly controlling, controlled by or under common control with
the Company, where control may be by either management authority or equity
interest.
Effect of Termination. In the event of termination of your employment, you will
be entitled to salary earned but not paid through the date of termination, bonus
compensation, if any, awarded but not yet paid, vacation time earned but not
used through the date of termination and business expenses reimbursable under
Company policies and not yet reimbursed. Except for severance pay provided in
the event of termination by the Company other than for Cause or disability, no
compensation is earned after termination of employment. Provisions of this
Agreement shall survive termination if so provided in this Agreement (including
without limitation your obligations under Section 4, below) or if necessary or
desirable for the enforcement of other surviving provisions.
4. Confidential Information and Restricted Activities.
Confidentiality and Assignment of Rights. You agree that you will not use or
disclose to any other person or entity (except as required for the proper
performance of your regular duties for the Company) any Confidential
Information, as defined below. You understand that this restriction shall
continue to apply after your employment terminates, regardless of the reason for
such termination.
You also agree to assign to the Company any Intellectual Property, as defined
below, which you create or develop during employment (alone or with others, on
or off Company premises) which relates to the business of the Company or any of
its Affiliates or which utilizes the Confidential Information, facilities or
equipment of the Company or its Affiliates. You understand that this restriction
shall continue to apply after your employment terminates, regardless of the
reason for such termination.
"Confidential Information" means any and all information of the Company and its
Affiliates that is not generally available to the public. Confidential
Information also includes any information received by the Company or any of its
Affiliates from any person or entity with any understanding, express or implied,
that it will not be disclosed. Confidential Information does not include
information that enters the public domain, other than through your breach of
your obligations under this Agreement.
"Intellectual Property" means all inventions, discoveries, compositions,
concepts, ideas and the like (whether or not patentable or copyrightable or
constituting trade secrets) conceived, made, created, developed or reduced to
practice by you (alone or with others, on or off Company premises) during the
term of this Agreement that relate in any way to the business, products or
services of the Company or any of its Affiliates or to any prospective activity
of the Company or any of its Affiliates.
Conflicts of Interest and Non-Competition. You agree that some restrictions on
your activities during and after your employment are necessary to protect the
goodwill, Confidential
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Information and other legitimate interests of the Company and its Affiliates.
While you are employed by the Company and for twelve (12) months after your
employment terminates, you shall not, directly or indirectly, whether as owner,
partner, investor, consultant, agent, employee, co-venturer or otherwise,
compete with the Company or any of its Affiliates or undertake any planning for
any business competitive with the Company or any of its Affiliates.
Specifically, but without limiting the foregoing, you agree not to engage in any
manner in any activity that is directly or indirectly competitive or potentially
competitive with the business of the Company or any of its Affiliates as
conducted or under consideration at any time during your employment, including
without limitation any activity that involves the retail sale of wine or wine
accessories via the mails or the Internet.
Enforcement of Covenants. You acknowledge that you have carefully read and
considered all the terms and conditions of this Agreement, including the
restraints imposed upon you pursuant to this Section 4. You agree that those
restraints are necessary for the reasonable and proper protection of the Company
and its Affiliates and that each and every one of the restraints is reasonable
in respect to subject matter, length of time and geographic area. You further
acknowledge that, were you to breach any of the covenants contained in this
Section, the damage to the Company would be irreparable. You therefore agree
that the Company, in addition to any other remedies available to it, shall be
entitled to preliminary and permanent injunctive relief against any breach or
threatened breach by you of any of those covenants, without having to post bond.
It is further agreed that, in the event that any provision of this Section 4
shall be determined by any court of competent jurisdiction to be unenforceable
by reason of its being extended over too great a time, too large a geographic
area or too great a range of activities, such provision shall be deemed to be
modified to permit its enforcement to the maximum extent permitted by law.
5. Conflicting Agreements. In signing this Agreement, you give the Company
assurance that your signing this Agreement and the performance of your
obligations under it will not breach or be in conflict with any other agreement
to which you are a party or are bound and that you are not now subject to any
covenants against competition or similar covenants or court order that would
affect the performance of your obligations under this agreement. You agree that
you will not disclose to or use on behalf of the Company or any of its
Affiliates any proprietary information of a third party without that party's
consent.
6. Miscellaneous.
This offer of employment with the Company is contingent on the following: (1)
the Company's receipt from two previous employers of references that are
satisfactory to the Company and (2) the Company's verification of your identity
and eligibility to work in the U.S., which shall require your completion of the
enclosed Form I-9 and your provision to the Company of the appropriate documents
listed on that Form.
This letter contains the entire agreement between you and the Company and
replaces all prior communications, agreements and understandings, written or
oral, with respect to the terms and conditions of your employment and all
matters related thereto. This Agreement may not be
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modified or amended, and no breach shall be deemed to be waived, unless agreed
to in writing by you and the Company.
If the foregoing is acceptable to you, please sign the enclosed copy of
this letter in the space provided and return it to me, at which time this letter
and that copy will take effect as a binding agreement between you and the
Company on the basis set forth above.
Sincerely yours,
XXXXXXXXX & XXXX
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx Xxxxxx
President
Accepted and Agreed:
/s/ Xxxxxxx X. Xxxxx
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Date: 9-17-2001
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