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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
as of the 1st day of January, 1997, (the "Effective Date"), between THE HAVANA
REPUBLIC, INC., a Colorado corporation (the "Company"), whose address is 0000
Xxxxxx Xxxx, Xxxxxx, Xxxxxxx 00000, and XXXX XXXXXXXXXX (the "Employee"), whose
address is 00000 X.X. 00xx Xxxxx, Xxxxx, Xxxxxxx 00000.
WHEREAS, the Employee is willing to be employed by the Company
on the terms, covenants and conditions of this Agreement; and
WHEREAS, the Company is willing to employ the Employee on the
terms, covenants and conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements herein made,
the Company and the Employee do hereby agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the
following definitions will be applicable:
(a) Cause - (1) The willful and continued failure
substantially to perform duties for the Company (other than any such failure
resulting from incapacity due to physical or mental illness), after a demand for
substantial performance is delivered by the Board of Directors of the Company
that specifically identifies the manner in which there has been a failure to
substantially perform duties; (2) the willful engagement in misconduct that is
materially injurious to the Company, monetarily or otherwise; (3) an act or acts
constituting a felony under the laws of the United States or the State of
Florida; (4) an act or acts that result or are intended to result in improper
personal enrichment at the expense of the Company; or (5) the embezzlement of
funds or misappropriation of other property.
(b) DATE OF TERMINATION - (1) If employment is terminated for
Cause, the date specified in the Notice of Termination; or (2) if employment is
terminated for any other reason, the date on which~ a Notice of Termination is
given; provided that, if within 30 days after any Notice of Termination is
given, the party receiving such Notice of Termination notifies the other party
that a dispute exists concerning the termination, the Date of Termination snall
be the date on which the dispute is final1v determined, whether by mutual
written agreement of the parties or by final judgment, order or decree of a
court of competent jurisdiction, with the time or appeal therefrom having
expired and no appeal having been perfected.
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(c) GOOD REASON - (1) Without the Employee's express written
consent, the assignment to him of any duties inconsistent with his positions,
duties, responsibilities and status with the Company upon the beginning of
employment pursuant hereto, or a change in his reporting responsibilities,
titles or offices as in effect upon the beginning of employment pursuant hereto,
or his removal from or any failure to re-elect him to any of such positions,
except in connection with the termination of his employment for Cause or as a
result of his death or by him other than for Good Reason; (2) a reduction in his
base salary as in effect upon the beginning of employment pursuant hereto, or as
the same may be increased from time to time; (3) without his written consent, a
failure by the Company to continue any incentive compensation plans in which he
is entitled to participate (the "Incentive Plans") upon the beginning of
employment pursuant hereto, as the same may be modified from time to time but
substantially in the forms currently in effect, or a failure by the Company to
continue him as a participant in the Incentive Plans on at least the same basis
as he participates in accordance with the Incentive Plans upon the beginning of
employment pursuant hereto or upon the later implementation of any such
Incentive Plan during the term of this Agreement; (4) without his written
consent, his reassignment to a different location than his present office
location where practicality dictates a change in his residence, except for
required travel on business to an extent substantially consistent with his
business travel obligations upon the beginning of employment pursuant hereto or
except as otherwise specifically provided in this Agreement; (5) without his
written consent, the failure by the Company to continue in effect any benefit or
compensation, life insurance, health and accident, or disability plan in which
the Employee is participating upon the beginning of employment pursuant hereto
or upon the later implementation of any such plan during the term of this
Agreement (or plans providing him with substantially similar benefits), the
taking of any action by the Company that would adversely affect his
participation in or materially reduce his benefits pursuant to any such plans or
deprive him of any material fringe benefit enjoyed by him pursuant to such plan,
or the failure of the Company to provide him with a number of paid vacation days
to which he is then entitled in accordance with the normal vacation policy in
effect on the date thereof; or (6) any purported termination of his employment
that is not effected pursuant to a Notice of Termination as defined herein,
which purported termination shall not he effective for purposes of this
Agreement.
(d) NOTICE OF TERMINATION - Notice that shall indicate the
specific termination provision in this Agreement relied upon and shall set forth
in reasonable detail the facts and circumstances claimed to provide a basis fcr
termination of employment pursuant to the provision so indicated.
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(e) WILLFUL - Not in good faith and without reasonable belief
that the action or omission to act was in the best interest of the Company.
2. EMPLOYMENT. The Company hereby employs the Employee, and
the Employee hereby accepts employment, as the Vice President of
the Company, upon the terms and conditions of this Agreement.
3. AUTHORITY AND POWER DURING EMIOLOVMENT PERIOD. The duties of the
Employee shall be subject to the direction of the Company and the Employee shall
perform all duties as may be mutually agreed upon between the Employee and the
Company. The Company recognizes that the Employee is a part-owner and primary
operator of Zelick's Tobacco, a family-owned retail and wholesale cigar business
with its principal place of business in Miami Beach, Florida. The Company
acknowledges that the Employee must devote time to the operation of Zelick's
Tobacco and agrees that the Employee's time commitment to the business affairs
of the Company must take the Employee's time commitment to Zelick's Tobacco into
consideration.
4. TERM. The term of employment hereunder will commence on the
Effective Date as set forth above and end on December 31, 2001,
unless sooner terminated by the Company for Cause.
5. CCMPENSATION AND BENEFITS.
a. COMPENSATION. For all services rendered by the Employee
pursuant to the terms of this Agreement and in consideration of the execution of
this Agreement by the Employee, the Company shall pay the Employee at an annual
rate of compensation in the initial amount of $80,00O, payable in accordance
with the Company's normal payroll procedures. On January 1 of each year of the
term of this Agreement beginning January 1, 1998, the annual rate of
compensation shall be increased if so determined by the Company's Board of
Directors.
If the Employee and the Company both agree, payment or all or any part
of the Employee's salary may be deferred until such time as both agree that the
Company can financially afford to pay such deferred salary in cash. In addition,
any such deferred salarv may, at the sole option of the Employee, be paid at any
time to the Employee in shares of the Ccmpany's common stock based on the "fair
market value" of such stock on the date of such election by the Employee. For
purposes of the foregoing sentence, "fair market value" shall mean if the common
stock is traded in a market in which actual transactions are reported, the mean
of the high and low prices at which the common stock is reported to have traded
on
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the relevant date in all markets on which trading in the common stock is
reported or, if there is no reported sale of the common stock on the relevant
date, the mean of the highest reported bid price and lowest reported asked price
for the common stock on the relevant date; or (ii) if the Common Stock is traded
only in markets in which there is no reporting of actual transactions, the mean
of the highest reported bid price and the lowest reported asked price for the
common stock on the relevant date.
b. EMPLOVEE BENEFITS. The Employee shall be entitled to all
fringe benefits that are currently or hereafter given during the term of this
Agreement to employees in comparable positions, including but not limited to
life insurance, medical and dental, health and accident, disability, and pension
or profit-sharing plans, programs or arrangements. In addition, the Employee
shall be entitled to an automobile allowance from the Company of $750 per month
and payment by the Company of the automobile insurance for the Employee's
automobile.
c. TAX WITHHOLDING. The Company may withhold from any
compensation or benefits payable pursuant to this Agreement all
taxes required to be withheld by any law, regulation or governmental
ruling.Severance Benefits.
6. TERMINATION. Any termination of the Employee's employment pursuant
to this Agreement by the Company, other than for Cause, or by the Employee for
Good Reason shall constitute a breach by the Company of this Agreement. Any
purported termination by the Company for Cause or by the Employee for Good
Reason shall be communicated by written Notice of Termination to the other party
to this Agreement. Notwithstanding anything else contained in this Agreement,
the Employee will not be deemed to have been terminated for Cause unless and
until there shall have been delivered to him a copy of a Notice of Termination
from the Board of Directors of the Company, after reasonable notice to the
Employee and his counsel and an opportunity to be heard before the Board of
Directors of the Company, in which Notice of Termination the Board of Directors
makes a finding in good falth that the Employee committed one of the types of
conduct set forth in the definition of Cause contained in this Agreement and
specifies the particulars thereof in detail.
7. NOTICES. Any notice required or permitted to be given
under the terms of this Agreement shall be sufficient if in writing
and if sent postage prepaid by registered or certified mail, return
receipt requested; bv overnight delivery; by courier; or by
confirmed telecopy, in the case of the Employee to the Employee
last place of business or residence as shown on the records of the
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Company, or in the case of the Company to its principal office at 0000 Xxxxxx
Xxxx, Xxxxxx, Xxxxxxx 00000, or such other place as it may designate.
8. MISCELLANEOUS.
(a) FURTHER ASSURANCES. At any time, and from time to time, each party
will execute such additional instruments and take such action as may be
reasonably requested by the other party to carry out the intent and purposes of
this Agreement.
(b) TIME. Time is of the essence.
(c) ENTIRE ACRREEMENT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof. It
supersedes all prior negotiations, letters and understandings relating to the
subject matter hereof.
(d) AMENDMENT. This Agreement may not be amended, supplemented or
modified in whole or in part except by an instrument in writing signed by the
party or parties against whom enforcement of any such amendment, supplement or
modification is sought.
(e) CHOICE OF LAW. This Agreement will be interpreted, construed and
enforced in accordance with the laws of the State of Florida, without giving
effect to the application of the principles pertaining to conflicts of laws.
(f) HEADINGS. The section and subsection headings in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(g) PRONOUNS. All pronouns and any variations thereof shall he deemed
to refer to the masculine, feminine, neuter, singular or plural as the context
may require.
(h) CONSTRUCTION. This Agreement shal1 be construed neither against nor
in favor of any of the parties hereto, but rather in accordance with the fair
meaning thereof.
(i) EFFECT OF WAIVER. The failure of any party at any time or times to
require performance of any provision of this Agreement will in no manner affect
the right to enforce the same. The waiver by any party of any breach of any
provision of this Agreement will not be construed to be a waiver by any such
party of any succeeding breach of that provision or a waiver by such party of
any breach of anv other provision.
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(j) SEVERABILITY. The invalidity, illegality or unenforceability of any
provision or provisions of this Agreement will not affect any other provision of
this Agreement, which will remain in full force and effect, nor will the
invalidity, illegality or unenforceability of a portion of any provision of this
Agreement affect the balance of such provision. In the event that any one or
more of the provisions contained in this Agreement or any portion thereof shall
for any reason be held to be invalid, illegal or unenforceable in any respect,
this Agreement shall be reformed, construed and enforced as if such invalid,
illegal or unenforceable provision had never been contained herein.
(k) ENFORCEMENT. Should it become necessary for any party to institute
legal action to enforce the terms and conditions of this Agreement, the
successful party will be awarded reasonable attorneys' fees at all trial and
appellate levels, expenses and costs. Any suit, action or proceeding with
respect to this Agreement shall be brought in the courts of Dade County in the
State of Florida or in the U.S. District Court for the Southern District of
Florida. The parties hereto hereby accepts the exclusive jurisdiction of those
courts for the purpose of any such suit, action or proceeding.
Venue for any such action, in addition to any other venue
permitted by statute, will be Dade County, Florida. The parties hereto hereby
irrevocably waive, to the fullest extent permitted by law, any objection that
any of them may now or hereafter have to the laying of venue of any suit, action
or proceeding arising out of or relating to this Agreement or any judgment
entered by any court in respect thereof brought in Dade County, Florida, and
hereby further irrevocably waive any claim that any suit, action or proceeding
brought in Dade County, Florida, has been brought in an inconvenient forum.
The parties hereto acknowledge and agree that any party's
remedy at law for a breach or threatened breach of any of the provisions of this
Agreement would be inadequate and such breach or threatened breach shall be per
se deemed as causing irreparable harm to such party. Therefore, in the event of
such breach or threatened breach, the parties hereto agree that, in addition to
any available remedy at law, including but not limited to monetary damages, an
aggrieved party, without posting any bond, shall be entitled to obtain, and the
offending party agrees not to oppose the aggrieved party's request for,
equitable relief in the form of specific enforcement, temporary restraining
order, temporary or permanent injunction, or any other equitable remedy that may
then be available to the aggrieved party.
(1) BINDING NATURE. This Agreement will be binding upon and
will inure to the benefit of any successor or successors of the parties hereto.
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(m) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which together
will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
Witnesses: THE HAVANA REPUBLIC, INC.
a Colorado corporation
By:
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Xxxxxxx Xxxxxxxxx,
President
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XXXX XXXXXXXXXX
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