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EXHIBIT 10.1(e)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into, and
shall be binding this 27th day of March, 2000, by and between E Commerce
Ventures, Inc., a Florida corporation ("Employer") and Xxxxxxx Xxxxxx
("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 developing e-commerce; 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 Director of Distribution Logistics for
Perfumania Marketing, Inc., a wholly owned subsidiary of E Commerce Ventures,
Inc., 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 E Commerce Ventures.
4. Term. The term of the Agreement shall commence on March 27, 2000 and
shall expire on March 27, 2003.
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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 One
Hundred Fifty-Five Thousand Dollars
($155,000)("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 60,000 options of
E Commerce Ventures, at a price equal to the
price of the stock at the close of the
market on May 8, 2000. Such options shall
vest as follows: 20,000 one year from date
of hire, 20,000 two years from date of hire,
and 20,000 three years from date of hire.
(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.
d. Vacation. Employee shall be entitled to take up to
fifteen (15) working days of vacation per twelve (12)
month period during the Term.
e. Increases In Salary. On March 27, 2001, and on March
27, 2002, Executive's salary from the previous year
shall be increased by the higher of 5% or C.P.I.
6. Early Termination of Contract.
a. Early Termination. To the extent that the Company
shall decide to terminate this agreement, other than
for "Cause" as defined in Sub-section 6. (a) (i),
prior to March 27, 2003, Executive shall be entitled
to compensation as defined in paragraph 5 (including
salary, stock plan, insurance coverage and automobile
allowance) 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 the 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.
i. Cause. Termination of the Executive's employment
for "Cause" shall mean termination because of willful misconduct, breach of
fiduciary duty involving personal profit, intentional failure to perform stated
duties, willful violation of any law, rule or regulation (other than traffic
violations or similar offenses) or final cease-and-desist order or material
breach of any provision of this Agreement. For purposes of this paragraph, no
act or failure to act on the Executive's part shall be considered "willful"
unless done, or omitted to be done, by the Executive not in good faith and
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without reasonable belief that the Executive's action or omission was in the
best interest of the Corporation. Cause shall be determined in good faith by the
affirmative vote of a majority of the whole Board of Directors (excluding the
Executive) after the Executive has been provided the opportunity to make a
presentation to the Board which presentation to the Board may be with counsel.
b. Change in Control of the Corporation. "Change in Control of
the Corporation" shall mean a change in control of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Securities Exchange Act of 1934, as amended ("Exchange
Act"), or any successor thereto, whether or not the Corporation is registered
under Exchange Act; provided that, without limitation, such a change in control
shall be deemed to have occurred if (i) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act) other than Perfumania, Inc., the
Executive or the Corporation, is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of
the Corporation representing 25% or more of the combined voting power of the
Corporation's then outstanding securities; or (ii) during any period of
twenty-four consecutive months, individuals who, at the beginning of such period
constitute the Corporation's Board of Directors, cease for any reason to
constitute at least a majority thereof unless the election, or the nomination
for election by stockholders, of each new director was approved by a vote of at
least two-thirds of the directors then still in office who were directors at the
beginning of the period.
To the extent that Employer undergoes a Change in
Control of the Corporation, all items under Section 5
(including salary, stock plan, insurance coverage, automobile
allowance, and any other unexercised options), shall be
doubled for the greater of the duration of this Agreement or
24 months.
All unvested stock options granted to Executive shall
immediately vest upon termination of Executive's employment
under Section 6 (a) or Section 6 (b) of the Agreement.
7. 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: E Commerce Ventures, Inc.
00000 X.X. 000 Xxxx
Xxxxx, Xxxxxxx 00000
To Executive: Xxxxxxx Xxxxxx
00000 X. X. 00xx Xxxxx
Xxxxxxxx, 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
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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.
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.
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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.
IN WITNESS WHEREOF, Employer and Executive have executed this Agreement
as of the date first above written.
WITNESSES: EMPLOYER:
By:
/s/ Xxxx Xxxxxx
E COMMERCE VENTURES, INC.
EXECUTIVE:
By: /s/ Xxxxxxx Xxxxxx
XXXXXXX XXXXXX
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