1
EXHIBIT 10.10
EMPLOYMENT AGREEMENT
DATED AS OF OCTOBER __, 1996
BETWEEN
STYLING TECHNOLOGY CORPORATION
AND
▇▇▇▇▇▇ ▇. BLACK
2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made this ____ day of
October, 1996, by and between STYLING TECHNOLOGY CORPORATION, a Delaware
corporation (hereinafter called "Employer") and ▇▇▇▇▇▇ ▇. BLACK (hereinafter
called ("Employee").
W I T N E S S E T H:
A. Employee currently serves as President of ▇▇▇▇ Laboratories, Inc.
("▇▇▇▇").
B. Employer has entered into a stock purchase agreement providing for
Employer to acquire ▇▇▇▇ (the "Acquisition").
C. Employer is in the process of preparing for an initial public
offering of its Common Stock (the "Offering").
D. It is contemplated that the consummation of the Offering Acquisition
and the closing of the Offering will occur simultaneously.
E. Employer desires to employ Employee and Employee desires to accept
such employment, all on the terms and conditions set forth in this Agreement
effective on the consummation of the Acquisition and the closing of the Offering
(the "Effective Date").
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants set forth in this Agreement, the parties hereto agree as follows:
1. EMPLOYMENT. On the Effective Date, Employer shall employ Employee,
and Employee shall accept such employment, as Vice President of Employer's ▇▇▇▇
Division and in such other capacities and for such other duties and services as
shall from time to time be mutually agreed upon by Employer and Employee.
2. FULL TIME OCCUPATION. Commencing on the Effective Date, Employee
shall devote Employee's entire business time, attention and efforts to the
performance of Employee's duties under this Agreement during the first six
months of employment, and shall serve Employer faithfully and diligently. It is
recognized that the Employee does maintain certain other business interests, but
the performance of these other interests shall not affect his ability to perform
the duties under this Agreement. During the second six month period of
employment, the Employee's hours, responsibilities, duties, and services shall
be reduced. It is anticipated that in no event will the Employee devote more or
less than twenty (20) hours per average week to the business of the Employee
during this period. During this period, the Employee may also pursue other
business pursuits not inconsistent with this Agreement.
3
3. COMPENSATION AND OTHER BENEFITS.
(a) SALARY. Beginning on the Effective Date, Employer shall
pay to Employee, as full compensation for the services rendered by Employee,
during Employee's employment under this Agreement, a salary of $115,494.00. This
salary is to be paid as follows: $76,998.00 at the rate of $12,833 per month for
the first six months and a salary of $38,496.00 to be paid at the rate of $6,416
per month for the second six months.
(b) INSURANCE AND OTHER BENEFITS. During the term of
Employee's Employment under this Agreement,
(i) Employee shall be entitled to participate in or
receive benefits under all employee and executive benefit plans or arrangements
and perquisites of employment, including without limitation, plans or
arrangements providing for health and disability insurance coverage, life
insurance for the benefit of Employee's beneficiaries, deferred compensation and
pension benefits, incentive stock option plans, all at the highest level that is
available through Employer to other division vice presidents of Employer subject
to the same terms and conditions as apply to such other division vice
presidents.
(ii) Employee shall be entitled to receive not less
than three weeks paid vacation per year.
4. TERM OF EMPLOYMENT.
(a) EMPLOYMENT TERM. The term of Employee's employment
hereunder shall commence on the completion of Employer's acquisition of ▇▇▇▇
Laboratories, Inc. and shall continue for one year thereafter, unless and until
terminated by either party giving written notice to the other not less than 60
days prior to the end of the then current term.
(b) TERMINATION UNDER CERTAIN CIRCUMSTANCES. Notwithstanding
anything to the contrary herein contained:
(i) Employee's employment shall be automatically
terminated, without notice, effective upon the date of Employee's death;
(ii) If Employee shall fail, for a period of more
than 30 consecutive days, or for 30 days within any 60 day period, to perform
any of Employee's duties under this Agreement as the result of illness or other
incapacity, Employer may, at its option, upon notice to Employee, terminate
Employee's employment effective on the date of that notice;
(iii) If Employee shall breach or violate any of the
provisions of this Agreement, or fail to perform in a manner reasonably
satisfactory to Employer any of the duties required of Employee and such breach,
violation or failure shall continue for a period of 10 days after Employer shall
have given Employee written notice specifying the nature thereof in reasonable
detail, Employer may, at its option, upon notice to Employee, terminate
Employee's employment effective on the date of that notice.
2
4
(iv) Employer may terminate Employee's employment at
any time without cause by giving 30 days prior written notice thereof.
(c) PAYMENTS UPON TERMINATION. In the event Employer
terminates Employee's employment pursuant to subparagraph 4(b)(iv), Employer
shall be obligated to pay Employee as liquidated damages Employee's salary
pursuant to subparagraph 3(a), excluding any additional stock options, for (i)
30 days after such termination, if such termination occurred on or before the
six month anniversary of the IPO or (ii) 60 days after such termination, if such
termination occurred after the six month anniversary of the IPO. Employer shall
pay such liquidated damages in installments in accordance with subparagraph 3(a)
hereof. Employee shall receive no further compensation after the termination of
Employee's employment as a result of any other circumstances.
5. COMPETITION AND CONFIDENTIAL INFORMATION.
(a) INTERESTS TO BE PROTECTED. The parties acknowledge that
during the term of Employee's employment with Employer, Employee will perform
essential services for Employer. Employee will be exposed to, have access to,
and be required to work with, a considerable amount of Confidential Information
(as defined below). The parties also expressly recognize and acknowledge that
the personnel of Employer have been trained by, and are valuable to, Employer
and that if Employer must hire new personnel or retrain existing personnel to
fill vacancies, it will incur substantial expense in recruiting and training
such personnel. The parties expressly recognize that should Employee compete
with Employer in any manner whatsoever, it could seriously impair the good will
and diminish the value of Employer's business. The parties acknowledge that this
covenant has an extended duration; however, they agree that this covenant is
reasonable and it is necessary for the protection of Employer, its stockholders
and employees. For these and other reasons, and the fact that there are many
other employment opportunities available to Employee if he should terminate his
employment, the parties are in full and complete agreement that the following
restrictive covenants are fair and reasonable and are freely, voluntarily and
knowingly entered into. Furthermore, each party was given the opportunity to
consult with independent legal counsel before entering into this Agreement.
(b) NON-COMPETITION. During the term of Employee's employment
with Employer and for the period consistent with the term of the Stock Purchase
Agreement, dated as of May 8, 1996, among Leopold Styling Products, Inc., ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, and
the ▇▇▇▇▇▇ Family Partnership, L.P., a Texas Limited Partnership, after the
termination of Employee's employment with Employer, regardless of the reason
therefor, Employee shall not (whether directly or indirectly, as owner,
principal, agent, stockholder, director, officer, manager, employee, partner,
participant, or in any other capacity) engage or become financially interested
in any competitive business conducted within the Restricted Territory or
solicit, canvas or accept, or authorize any other person, firm or entity to
solicit, canvas or accept, from any customers of Employer, any business within
the Restricted Territory for Employee or for any other person, firm or entity.
As used herein, customers of Employer shall mean any persons, firms or entities
that purchased goods or services from Employer during the period of Employee' s
employment with Employer; competitive business shall mean any business which
sells or provides or attempts to sell or provide products or services the same
as or substantially similar to the products or services sold or provided by
Employer; and the Restricted Territory shall mean any area in which Employer
conducts business.
3
5
(c) NON-SOLICITATION OF EMPLOYEES. During the term of
Employee's employment and for a period of 12 months after the termination of
Employee's employment with Employee, regardless of the reason therefor, Employee
shall not directly or indirectly, for himself, or on behalf of, or in
conjunction with, any other person(s), company, partnership, corporation, or
governmental entity, seek to hire, and/or hire any of Employer's personnel or
employees for the purpose of having such employee engage in services that are
the same, similar or related to the services that such employee provided for
Employer.
(d) CONFIDENTIAL INFORMATION. Employee shall maintain in
strict secrecy all confidential or trade secret information relating to the
business of Employer (the "Confidential Information") obtained by Employee in
the course of Employee's employment, and Employee shall not, unless first
authorized in writing by Employer, disclose to, or use for Employee's benefit or
for the benefit of any person, firm or entity at any time either during or
subsequent to the term of Employee's employment, any Confidential Information,
except as required in the performance of Employee's duties on behalf of
Employer. For purposes hereof, Confidential Information shall include without
limitation any trade secrets, knowledge or information with respect to
processes, inventions, formulae, machinery, manufacturing techniques or
know-how; any business methods or forms; any names or addresses of customers or
data on customers or suppliers; and any business policies or other information
relating to or dealing with the purchasing, sales or distribution policies or
practices of Employer.
(e) RETURN OF BOOKS AND PAPERS. Upon the termination of
Employee's employment with Employer for any reason, Employee shall deliver
promptly to Employer all catalogues, manuals, memoranda, drawings, and
specifications; all cost, pricing and other financial data; all customer
information; all other written or printed materials which are the property of
Employer (and any copies of them); and all other materials which may contain
Confidential Information relating to the business of Employer, which Employee
may then have in Employee's possession whether prepared by Employee or not.
(f) DISCLOSURE OF INFORMATION. Employee shall disclose
promptly to Employer, or its nominee, any and all ideas, designs, processes and
improvements of any kind relating to the business of Employer, whether
patentable or not, conceived or made by Employee, either alone or jointly with
others, during working hours or otherwise, during the entire period of
Employee's employment with Employer, or within six months thereafter.
(g) ASSIGNMENT. Employee hereby assigns to Employer or its
nominee, the entire right, title and interest in and to all discoveries and
improvements, whether patentable or not, which Employee may conceive or make
during Employee's employment with Employer, or within six months thereafter, and
which relate to the business of Employer.
(h) EQUITABLE RELIEF. In the event a violation of any of the
restrictions contained in this paragraph is established, Employer shall be
entitled to preliminary and permanent injunctive relief as well as damages and
an equitable accounting of all earnings, profits and other benefits arising from
such violation, which right shall be cumulative and in addition to any other
rights or remedies to which Employer may be entitled. In the event of a
violation of any provision of subparagraph (a), (d) or (e) of this paragraph,
the period for which those provisions would remain in effect shall be extended
for a period of time equal to that period beginning when such violation
commenced and ending when the activities constituting such violation shall have
been finally terminated in good faith.
4
6
(i) RESTRICTIONS SEPARABLE. Each and every restriction set
forth in this paragraph is independent and severable from the others, and no
such restriction shall be rendered unenforceable by virtue of the fact that, for
any reason, any other or others of them may be unenforceable in whole or in
part.
6. MISCELLANEOUS.
(a) NOTICES. All notices, requests, demands and other
communications required or permitted under this Agreement shall be in writing
and shall be deemed to have been duly given, made and received when delivered
against receipt or when deposited in the United States mails, first class
postage prepaid, addressed as set forth below:
(i) If to Employer:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇
with a copy to:
▇'▇▇▇▇▇▇, Cavanagh, Anderson,
▇▇▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
(ii) If to Employee:
_______________________________
_______________________________
_______________________________
Attention: ____________________
with a copy to:
_______________________________
_______________________________
_______________________________
Attention: ____________________
Either party may alter the address to which communications or copies are to be
sent by giving notice of such change of address in conformity with the
provisions of this paragraph for the giving of notice.
5
7
(b) INDULGENCES. Neither any failure nor any delay on the part
of either party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence.
(c) CONTROLLING LAW. This Agreement and all questions relating
to its validity, interpretation, performance and enforcement, shall be governed
by and construed in accordance with the laws of the State of Texas,
notwithstanding any Texas or other conflict-of-interest provisions to the
contrary.
(d) BINDING NATURE OF AGREEMENT. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
heirs, personal representatives, successors and assigns except that no party may
assign or transfer such party's rights or obligations under this Agreement
without the prior written consent of the other party.
(e) EXECUTION IN COUNTERPART. This Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an original
as against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of the parties reflected hereon as the signatories.
(f) PROVISIONS SEPARABLE. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
(g) ENTIRE AGREEMENT. This Agreement contains the entire
understanding between the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements and
understandings, inducements and conditions, express or implied, oral or written,
except as herein contained. The express terms hereof control and supersede any
course of performance and/or usage of the trade inconsistent with any of the
terms hereof. This Agreement may not be modified or amended other than by an
agreement in writing.
(h) PARAGRAPH HEADINGS. The paragraph headings in this
Agreement are for convenience only; they form no part of this Agreement and
shall not affect its interpretation.
(i) GENDER. Words used herein, regardless of the number and
gender specifically used, shall be deemed and construed to include any other
number, singular or plural, and any other gender, masculine, feminine or neuter,
as the context requires.
(j) NUMBER OF DAYS. In computing the number of days for
purposes of this Agreement, all days shall be counted, including Saturdays,
Sundays and holidays; provided, however, that if the final day of any time
period falls on a Saturday, Sunday or holiday, then the final day shall be
deemed to be the next day which is not a Saturday, Sunday or holiday.
6
8
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
EMPLOYER:
STYLING TECHNOLOGY CORPORATION
By: _________________________________
Name: _______________________________
Its: ________________________________
EMPLOYEE:
_____________________________________
▇▇▇▇▇▇ ▇. Black
7
9
▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
File No.: 31114-100
October 29, 1996
Styling Technology Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
RE: REGISTRATION STATEMENT ON FORM S-1
STYLING TECHNOLOGY CORPORATION
Ladies and Gentlemen:
As legal counsel to Styling Technology Corporation, a Delaware
corporation (the "Company"), we have assisted in the preparation of the
Company's Registration Statement on Form S-1, Registration No. 333-12469 (the
"Registration Statement"), filed with the Securities and Exchange Commission in
connection with the registration under the Securities Act of 1933, as amended,
of the shares of common stock of the Company covered by the Registration
Statement (the "Shares"). The facts, as we understand them, are set forth in the
Registration Statement.
With respect to the opinion set forth below, we have examined
originals, certified copies, or copies otherwise identified to our satisfaction
as being true copies, only of the following:
A. The Certificate of Incorporation of the Company, as amended
to date;
B. The Bylaws of the Company;
C. The Registration Statement; and
D. The Resolutions of the Board of Directors of the Company
relating to the organization of the Company and the approval of the filing of
the Registration Statement and the transactions in connection therewith.
10
Styling Technology Corporation
October 29, 1996
Page 2
Subject to the assumptions that (i) the documents and
signatures examined by us are genuine and authentic and (ii) the persons
executing the documents examined by us have the legal capacity to execute such
documents, and subject to the further limitations and qualifications set forth
below, it is our opinion that, when (a) the Registration Statement as then
amended shall have been declared effective by the Commission, (b) the
Underwriting Agreement shall have been duly executed and delivered, and (c) the
Shares have been duly issued, executed, authenticated, delivered, paid for and
sold by the Company as described in the Registration Statement and in accordance
with the provisions of the Underwriting Agreement, the Shares will be validly
issued, fully paid and nonassessable.
Please be advised that we are members of the State Bar of
Arizona, and our opinion is limited to the legality of matters under the laws of
the State of Arizona. Further, our opinion is based solely upon existing laws,
rules and regulations, and we undertake no obligation to advise you of any
changes that may be brought to our attention after the date hereof.
We hereby expressly consent to any reference to our firm in
the Registration Statement, the inclusion of this Opinion as an exhibit to the
Registration Statement, and to the filing of this Opinion with any other
appropriate governmental agency.
Very truly yours,
▇'▇▇▇▇▇▇, Cavanagh, Anderson,
▇▇▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.A.