Exhibit 10.1


 


EMPLOYMENT AGREEMENT


 


This EMPLOYMENT AGREEMENT
(“Agreement”), effective as of the 30th day of January, 2017 (“Effective Date”), by and
among, Christopher Santi (the “Executive”) and Vapor Corp., a Delaware corporation (“Vapor”
or the “Company”).


 


RECITALS


 


WHEREAS,
Executive is currently employed by Vapor;


 


WHEREAS,
Company wishes to enter into the Agreement to continue the services of Executive, and, in connection therewith, Company and Executive
desires to enter into this Agreement to become effective on the Effective Date; and


 


WHEREAS, the parties
have agreed to enter into this Agreement and the Executive shall serve as President and Chief Operating Officer of the Company.  


 


NOW, THEREFORE,
In consideration of the mutual representations, warranties, covenants and agreements contained in this Agreement and other good
and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:


 


1.         Employment.


 


(a)          Employment
Period.  Subject to the terms and conditions set forth herein and unless sooner terminated as hereinafter provided,
Company shall employ Executive and Executive agrees to serve as an employee of Company for a three-year period, commencing on the
Effective Date hereof to and including the 3rd anniversary of the date of this Agreement (the “Employment Term”).  The
Employment Term shall be automatically renewed for successive one-year terms unless notice of non-renewal is given by either party
at least 30 days before the end of the Term.  For purposes of this Agreement, the Employment Term and any renewal term
thereof are collectively referred to herein as the “Employment Period.”  This Agreement will terminate
automatically upon a Change of Control (as defined in Section 3(e)).


 


(b)          Duties
and Responsibilities.  During the Employment Period, the Executive shall serve as President and Chief Operating
Officer.  In such role, Executive shall have such authority and responsibility and perform such duties as may be assigned
to him from time to time by the Board of Directors of the Company (the “Board”), and in the absence of such
assignment, such duties as are customary to Executive’s office and as are necessary or appropriate to the business and operations
of the Company and its subsidiaries.  During the Employment Period, the Executive’s employment shall be full time,
Executive shall perform his duties honestly, diligently, in good faith and in the best interests of the Company and its subsidiaries,
and Executive shall use his best efforts to promote the interests of the Company and its subsidiaries.


 




     


     


    

 


2.         Compensation.


 


(a)          Base
Salary.  In consideration for the Executive’s services hereunder and the restrictive covenants contained
herein, the Executive shall initially be paid an annual base salary as follows: Year 1 of the Employment Term: $225,000; Year 2
of the Employment Term: $250,000; and Year 3 of the Employment Term: $275,000 (the “Salary”), which salary shall
be payable commencing as of date hereof and shall be payable in accordance with the Company’s customary payroll practices.  


 


(b)          Bonus.  In
addition to the Salary, for each Measurement Period, Executive shall be entitled to earn an annual bonus at the discretion of the
Company’s board of Directors.


 


(c)          Vacations.  The
Executive shall be entitled to no less than twenty (20) days of vacation on an annual basis during the Term with additional paid
vacation time being accrued in accordance with the Company’s vacation policy.  Per the Company’s vacation
policy, the Executive’s vacation does not carry over year over year.


 


(d)          Other
Benefits.  During the term of this Agreement, the Executive shall be entitled to coverage (subject to contributions
required of other C-level executive employees of the Company generally) in the health and dental insurance plans of the Company
and any life insurance programs, disability programs, pension plans and other fringe benefit plans and programs as are from time
to time established and maintained for the benefit of the Company’s employees or officers, subject to the provisions of such
plans and programs.  


 


(e)          Expenses.  The
Executive shall be reimbursed for all out-of-pocket expenses reasonably incurred by his on behalf of or in connection with the
business of the Company, pursuant to the normal standards and guidelines followed from time to time by the Company.


 


3.         Termination.


 


(a)          For
Cause.  The Company shall have the right to terminate this Agreement and to discharge the Executive for Cause
(as defined below), at any time during the Employment Period.  Termination for “Cause” shall mean,
during the Employment Period, (i)Executive’s conduct that would constitute under federal or state law either a felony or
any other criminal offense involving dishonesty or moral turpitude, or a determination by the Board, after consideration of all
available information and following the procedures set forth below, that Executive has willfully and materially violated Company
policies or procedures involving discrimination, harassment, substance abuse, or workplace violence or use of confidential information,
(ii) the Executive’s negligence or misconduct in the performance of his duties hereunder that has a material and adverse
effect on the Company, (iii) a material breach by the Executive of this Agreement or a material failure on the part of Executive
to perform his obligations hereunder or (iv) the Executive’s inability to perform his duties and responsibilities as provided
herein due to his death or Disability (as defined herein).  Any termination for Cause pursuant to this Section shall
be delivered to the Executive in writing and shall set forth in detail all acts or omissions upon which the Company is relying
to terminate the Executive for Cause.  


 




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Except as otherwise specifically
set forth herein, if the Executive is terminated for Cause, the Executive shall only be entitled to receive his accrued and unpaid
Salary, any declared bonus and other benefits through the termination date and the Company shall have no further obligations under
this Agreement from and after the date of termination.  “Disability” shall mean any mental or physical
illness, condition, disability or incapacity which prevents the Executive from reasonably discharging his duties and responsibilities
under this Agreement for a period of ninety (90) days in any one hundred eighty (180) day period.


 


(b)          Termination
by Executive.  If the Executive shall resign or otherwise terminate his employment with the Company at any time
during the term of this Agreement, the Executive shall only be entitled to receive his accrued and unpaid Salary, any declared
bonus and other benefits through the termination date and the Company shall have no further obligations under this Agreement from
and after the date of termination.


 


(c)          Termination
by Company Without Cause.  At any time during the term of this Agreement, the Company shall have the right to
terminate this Agreement and to discharge the Executive without Cause effective upon delivery of written notice to the Executive.  Upon
any such termination by the Company without Cause, the Company shall pay to the Executive all of the Executive’s accrued
but unpaid Salary through the date of termination and any declared bonus and (ii) any amount required pursuant to Section 3(e).


 


(d)          Death
of the Executive.  In the event of the death of Executive, the employment of the Executive by the Company shall
automatically terminate on the date of the Executive’s death and the Company shall be obligated to pay Executive’s
estate the Executive’s accrued and unpaid Salary, any earned but unpaid bonus and other benefits through the termination
date.  Other than as set forth in the preceding sentence, the Company shall have no further obligations under
this Agreement from and after the date of termination due to the death of the Executive.


 


(e)          Severance.  If
Executive’s employment by the Company is terminated (i) by the Company without Cause or (ii) upon a Change of Control pursuant
to Section 1(a), then (A) this Agreement shall be deemed to be terminated as of the date Executive ceases to be employed by the
Company and (B) Executive shall be entitled to (i) receive any unpaid Salary and bonus and (ii) continue to receive Executive’s
then Salary for the applicable Severance Period (as defined below) following the effective date of such termination (which shall
be paid in arrears in accordance with the Company’s general payroll practices, over the applicable period commencing on the
date of such termination and subject to withholding and other appropriate deductions) (the “Severance Payments”).  As
a condition to receiving the Severance Payments relating to periods following the date of such termination, Executive must sign,
deliver, and not revoke a release in the form attached hereto as Exhibit A, such that it has become effective and enforceable
as a condition to any payment pursuant to this Section 4(e).  “Severance Period” shall
mean (i) upon a Change of Control, eighteen (18) months and (ii) in the event Executive’s employment is terminated without
Cause, either (A) initially fifteen (15) months or (B) after the first anniversary of the Effective Date, fifteen (15) months plus
one additional month for every additional four (4) months that Executive has been employed by the Company after the date of this
Agreement, up to a maximum of eighteen (18) months.  “Change of Control” shall have the meaning set
forth in Treasury Regulation Section 1.409A-3(i)(5).


 




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4.         Restrictive
Covenants.  In consideration of his employment and the other benefits arising under this Agreement, the Executive
agrees that during the Employment Period, and for eighteen (18) months following the termination of this Agreement, the Executive
(or any affiliate) shall not directly or indirectly:


 


(a)          directly
or indirectly, own, manage, operate, join, control or participate in the ownership, management, operation or control of, or be
employed or retained by, render services to, provide financing (equity or debt) or advice to, or otherwise be connected in any
manner with any business located within five (5) miles of any current or future store of the Company, that sells or provides products
or services sold or provided by the Company including, without limitation, the ownership, management or operation of any (i) natural
and/or organic grocery stores or markets or (ii) electronic cigarettes; or


 


(b)          for
any reason, (i) induce any material customer or supplier of the Company or any of its subsidiaries or affiliates to patronize or
do business with any business directly or indirectly in competition with the businesses conducted by the Company or any of its
subsidiaries or affiliates in any market in which the Company or any of its subsidiaries or affiliates does business; (ii) canvass,
solicit or accept from any material customer or supplier of the Company or any of its subsidiaries or affiliates any such competitive
business; or (iii) request or advise any material customer, supplier or other provider of services to the Company or any of its
subsidiaries or affiliates to withdraw, curtail or cancel any such customer’s, supplier’s or provider’s business
with the Company or any of its subsidiaries or affiliates; or


 


(c)          for
any reason, employ, or knowingly permit any company or business directly or indirectly controlled by his, to employ, any person
who was employed by the Company or any of its subsidiaries or affiliates at or within the prior one (1) year, or
in any manner seek to induce any such person to leave his or his employment.


 


5.         Specific
Performance; Injunction.  The parties agree and acknowledge that the restrictions contained in Section 4 are
reasonable in scope and duration and are necessary to protect the Company or any of its subsidiaries or affiliates.  If
any provision of Section 4 as applied to any party or to any circumstance is adjudged by a court to be invalid or unenforceable,
the same shall in no way affect any other circumstance or the validity or enforceability of any other provision of this Agreement.  If
any such provision, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered
thereby, the parties agree that the court making such determination shall have the power to reduce the duration and/or area of
such provision, and/or to delete specific words or phrases, and in its reduced form, such provision shall then be enforceable and
shall be enforced.  The Executive agrees and acknowledges that the breach of Section 4 or Section 6 will cause irreparable
injury to the Company or any of its subsidiaries or affiliates and upon breach of any provision of such Sections, the Company or
any of its subsidiaries or affiliates shall be entitled to injunctive relief, specific performance or other equitable relief, without
being required to post a bond; provided, however, that, this shall in no way limit any other remedies which the Company
or any of its subsidiaries or affiliates may have (including, without limitation, the right to seek monetary damages).


 




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6.         Confidentiality.  The
Executive agrees that at all times during and after the Employment Period, the Executive shall (i) hold in confidence and refrain
from disclosing to any other party all information, whether written or oral, tangible or intangible, of a private, secret, proprietary
or confidential nature, of or concerning the Company and its subsidiaries, their business and operations, and all files, letters,
memoranda, reports, records, computer disks or other computer storage medium, data, models or any photographic or other tangible
materials containing such information (“Confidential Information”), including without limitation, any sales,
promotional or marketing plans, programs, techniques, practices or strategies, any expansion plans (including existing and entry
into new geographic and/or product markets), and any customer or supplier lists, (ii) use the Confidential Information solely in
connection with the Executive’s employment with the Company and for no other purpose, (iii) take all precautions necessary
to ensure that the Confidential Information shall not be, or be permitted to be, shown, copies or disclosed to any third parties,
without the prior written consent of the Company, and (iv) observe all security policies implemented by the Company from time to
time with respect to the Confidential Information.  In the event that the Executive is ordered to disclose any Confidential
Information, whether in a legal or regulatory proceeding or otherwise, the Executive shall provide the Company with prompt notice
of such request or order so that the Company may seek to prevent disclosure.  In the case of any disclosure, the Executive
shall disclose only that portion of the Confidential Information that the Executive is ordered to disclose.


 


7.         Notices.  All
notices, requests, demands, claims and other communications hereunder shall be in writing and shall be deemed given if delivered
by hand delivery, by certified or registered mail (first class postage pre-paid), guaranteed overnight delivery or facsimile transmission
if such transmission is confirmed by delivery by certified or registered mail (first class postage pre-paid) or guaranteed overnight
delivery to, the following addresses and telecopy numbers (or to such other addresses or telecopy numbers which such party shall
designate in writing to the other parties): (a) if to the Company, at its principal executive offices, addressed to the President,
with a copy to Martin T. Schrier, Cozen O’Connor, 200 South Biscayne Blvd., Suite 4410, Miami, Florida 33131; and (b) if
to the Executive, at the address listed on the signature page hereto.


 


8.         Amendment;
Waiver.  This Agreement may not be modified, amended, or supplemented, except by written instrument executed
by all parties.  No failure to exercise, and no delay in exercising, any right, power or privilege under this Agreement
shall operate as a waiver, nor shall any single or partial exercise of any right, power or privilege hereunder preclude the exercise
of any other right, power or privilege.  No waiver of any breach of any provision shall be deemed to be a waiver of any
preceding or succeeding breach of the same or any other provision, nor shall any waiver be implied from any course of dealing between
the parties.


 


9.         Assignment;
Third Party Beneficiary.  This Agreement, and the Executive’s rights and obligations hereunder, may not
be assigned or delegated by him.  The Company may assign its rights, and delegate its obligations, hereunder to any affiliate
of the Company, or any successor to the Company, specifically including the restrictive covenants set forth in Section 4 hereof.  The
rights and obligations of the Company under this Agreement shall inure to the benefit of and be binding upon its respective successors
and assigns.


 




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10.       Severability;
Survival.  In the event that any provision of this Agreement is found to be void and unenforceable by a court
of competent jurisdiction, then such unenforceable provision shall be deemed modified so as to be enforceable (or if not subject
to modification then eliminated herefrom) to the extent necessary to permit the remaining provisions to be enforced in accordance
with the parties intention.  The provisions of Section 4 and 6 will survive the termination for any reason of the Executive’s
relationship with the Company.


 


11.       Governing
Law.  This Agreement shall be construed in accordance with and governed for all purposes by the laws of the State
of Florida applicable to contracts executed and to be wholly performed within Florida.


 


12.       Construction.  This
Agreement shall be construed as a whole according to its fair meaning and not strictly for or against any party.  The
parties acknowledge that each of them has reviewed this Agreement and has had the opportunity to have it reviewed by their respective
attorneys and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall
not apply in the interpretation of this Agreement.


 


13.       Withholding.  All
payments made to the Executive shall be made net of any applicable withholding for income taxes and the Executive’s share
of FICA, FUTA or other taxes.  The Company shall withhold such amounts from such payments to the extent required by applicable
law and remit such amounts to the applicable governmental authorities in accordance with applicable law.


 


14.       Attorneys’
Fees.  In the event any legal proceeding is brought to enforce or interpret any part of this Agreement, the prevailing
Party in such legal proceeding shall be entitled to an award of reasonable attorneys’ fees and costs incurred by the prevailing
Party in such legal proceeding, at the trial level and at the appellate level and whether or not such proceeding is prosecuted
to final judgment.  


 


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IN WITNESS WHEREOF,
the parties have executed this Agreement effective as of the date first above written.


 





	 	Executive:	 
	 	 	 
	 	/s/ Christopher Santi	 
	 	Name: Christopher Santi	 
	 	 	 
	 	Address for Notices:	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 	 	 
	 	Vapor Corp.,	 
	 	a Delaware corporation	 
	 	 	 	 	 
	 	By:	/s/ Jeffrey E. Holman	 
	 	 	Name: 	Jeffrey E. Holman	 
	 	 	Title:	Chief Executive Officer	 




 


Signature Page for Employment Agreement




 




     


     


    

 


Exhibit A


 


Release


 


1.         Release.  I,
Christopher Santi, do hereby release and discharge Vapor Corp. and each of its parent companies, subsidiaries, each of the
respective direct and indirect equity owners of any of the foregoing, each of the respective Affiliates of any of the foregoing,
and each of the respective officers, directors, members, managers, partners, equity owners, employees, representatives and agents
of any of the foregoing (collectively, the “Employer Affiliates”, and each an “Employer Affiliate”)
from any and all claims, demands or liabilities whatsoever, whether known or unknown or suspected to exist by me, which I ever
had or may now have against any Employer Affiliate, from the beginning of time to the Effective Date (as defined below), including,
without limitation, any claims, demands or liabilities in connection with my employment, including wrongful termination, constructive
discharge, breach of express or implied contract, unpaid wages, benefits, attorneys’ fees or pursuant to any federal, state,
or local employment laws, regulations, or executive orders prohibiting inter alia, age, race, color, sex, national origin,
religion, handicap, veteran status, and disability discrimination, including, without limitation, the Age Discrimination in Employment
Act, Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, the Civil Rights Act of 1866, the Employee
Retirement Income Security Act of 1974, the Americans with Disabilities Act of 1990, and any similar state statute or any state
statute relating to employee benefits or pensions but specifically excluding claims, demands or liabilities related to my ownership
of equity in Holdings or for indemnification in connection with my service as a director or officer of the Company or any of its
Affiliates.  I fully understand that if any fact with respect to which this Release is executed is found hereafter to
be other than or different from the facts believed by me to be true, I expressly accept and assume the risk of such possible difference
in fact and agree that the release set forth herein shall be and remain effective notwithstanding such difference in fact.  I
acknowledge and agree that no consideration other than as provided for by the Employment Agreement has been or will be paid or
furnished by any Employer Affiliate.


 


2.         Covenant
Not to Sue.  I covenant and agree never, individually or with any person or in any way, to commence, aid in any way,
prosecute or cause or permit to be commenced or prosecuted against any Employer Affiliate any action or other proceeding, including,
without limitation, an arbitration or other alternative dispute resolution procedure, based upon any claim, demand, cause of action,
obligation, damage, or liability that is the subject of this Release.  I represent and agree that I have not and will
not make or file or cause to be made or filed any claim, charge, allegation, or complaint that is the subject of this Release,
whether formal, informal, or anonymous, with any governmental agency, department or division, whether federal, state or local,
relating to any Employer Affiliate in any manner, including without limitation, any


 




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Employer Affiliate’s
business or employment practices.  I waive any right to monetary recovery should any administrative or governmental agency
or entity pursue any claim on my behalf.


 


3.         Indemnification.  I
agree to indemnify and hold each Employer Affiliate harmless from and against any and all claims, including each Employer Affiliate’s
court costs and reasonable attorneys’ fees actually incurred, arising from or in connection with any claim, action, or other
proceeding made, brought, or prosecuted, or caused or permitted to be commenced or prosecuted, by me, my successor(s), or my assign(s)
contrary to the provisions of this Release.  It is further agreed that this Release shall be deemed breached and a cause
of action accrued thereon immediately upon the commencement of any action contrary to this Release, and in any such action this
Release may be pleaded by the Employer Affiliates, or any of them, both as a defense and as a counterclaim or cross-claim in such
action.


 


4.         Important
General Provisions.  If any provisions of this Release is held to
be invalid or unenforceable by a court of competent jurisdiction, such invalidity
or unenforceability shall not affect the validity and enforceability of the other provisions of this Release,
and the provision held to be invalid or unenforceable shall be modified by the court finding such provisions invalid or
unenforceable so that as revised the provision shall comply with the original terms and intent as nearly as possible and in such
revised form shall be valid and enforceable.  The provisions of this Release
shall be governed by, and construed and enforced in accordance with,
the laws of the State of Florida, both substantive and remedial.  The
undersigned hereby waives trial by jury in any judicial proceeding involving, directly
or indirectly, any matter (whether
in tort, contract or otherwise) in
any way arising out of, related to, or connected hereto, the Employment Agreement
or this Release.


 


5.         Right
to Consult Attorney.  I ACKNOWLEDGE THAT I HAVE BEEN ADVISED, IN WRITING, TO CONSULT WITH AN ATTORNEY PRIOR TO EXECUTING
THIS RELEASE.


 


6.         Waiver
of Claims.  Pursuant to the Older Workers Benefit Protection Act (“OWBPA”), which applies to the
waiver of rights under the Age Discrimination in Employment Act, I hereby state that I have had a period of 21 calendar days from
the date I was presented with this Release within which to consider this Release and my decision to execute the same, that I have
carefully read this Release, that I have had the opportunity to have it reviewed by an attorney, that I fully understand its final
and binding effect, that the only promises made to me to sign this Release are those stated in this Release and the Employment
Agreement, and that I am signing voluntarily with the full intent of releasing the Employer Affiliates of all claims subject to
this Release.  I acknowledge that I shall have a period of seven calendar days following my execution of this Release
to revoke this Release.  This Release, including any obligation to pay severance under the Employment Agreement, shall
not become effective if I timely exercise this right of revocation.  To be effective, any such notice of revocation must
be in writing, and must


 




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be received within said
seven day period.  This Release shall become effective upon expiration of said revocation period, if I have not prior
thereto exercised my right of revocation (the “Effective Date”).


 


	/s/ Christopher Santi	 
	Name: 	 Christopher Santi	 
	 	 	 
	Date:	January 30, 2017	 


 




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