EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
this 25th day of November, 1996, and is effective as of its execution (the
"effective date") between POCOTOPAUG INVESTMENT, INC., a Florida for profit
corporation (the "Company"), and XXXX X. XxXXXX (the "Employee").
WHEREAS, the Company is a Florida for profit corporation; and
WHEREAS, the Company was formed in August, 1995, by Xxxx X. XxXxxx and
Xxxxx X. Xxx for the purpose of raising money for the development of a bottled
water and water treatment company; and
WHEREAS, it was and is the intent of the Company to obtain a corporate
shell and take the project to the public market for the trading of its common
stock; and
WHEREAS, Xxxx X. XxXxxx and Xxxxx X. Xxx agreed, as equal partners in
Pocotopaug Investment, Inc., both before and after the formation of the Company,
that (i) the development of the Bottled water and water treatment publicly
trading company would be a five year project and (ii) that the rewards to them
would be realized from the long term appreciation of their common shares in the
public company; and
WHEREAS, representations regarding the long term commitment of Xxxx X.
XxXxxx and Xxxxx X. Xxx were made to potential investors as inducements to the
investors to participate in the project; and
WHEREAS, it was the Company's and the Employee's intent that its
operations start in Pinellas County, Florida, and, thereafter, spread throughout
the Xxxxx xx Xxxxxxx, xxx Xxxxxxxxx Xxxxxx Xxxxxx, and South and Central
America, including, but not limited, to Costa Rica; and
WHEREAS, Xxxx X. XxXxxx has developed information and business
contacts for the development of the Company's project; and
WHEREAS, a reverse merger of Pocotopaug Investment, Inc., into a
Colorado corporate shell, known as Aqua Xxxxx Bottling & Distribution, Inc., is
imminent; and
WHEREAS, the solicitation of subscription agreements from the Company's
investors and the filing of Section 504 documents with the resulting issuance of
publicly trading shares is to take place in the near future; and
WHEREAS, Xxxx X. XxXxxx is desirous of being employed by the
Company, Pocotopaug Investment, Inc. ("PII") and its successor,
Aqua Xxxxx Bottling & Distribution, Inc.; and
WHEREAS, the Company has agreed to hire Xxxx X. XxXxxx upon
certain terms and conditions, one of which is the execution of the
Agreement by Employee; and
WHEREAS, Xxxx X. XxXxxx is the Company's President and one of
its Directors; and
WHEREAS, it is the intent of the Company that all officers and
management employees will execute an employment agreement as a condition of
their employment.
NOW, THEREFORE, in consideration of the mutual agreements herein made,
the Company and Employment do hereby agree as follows:
1. Employment. The Company hereby employs the Employee as
President of Pocotopaug Investment, Inc., and its successor, Aqua
Xxxxx Bottling & Distribution, Inc., and Employee hereby accepts
said employment, upon the terms and conditions hereinafter set
forth.
2. Authority and Power During Employment Period. The duties of Employee
shall be those of the President and shall be subject to the discretion and
direction of the Company's officers and directors. Employee shall devote full
attention to and render exclusive full time services to the Company and shall be
employed solely by the Company according to the terms of this Agreement.
3. Term. The term of the employment hereunder will commence
upon execution of this Agreement and shall continue for five (5)
years, unless i) the parties mutually agree in writing to alter or
amend the terms of the Agreement, or ii) one or goth of the Paries
exercise their rights, pursuant to Paragraph ten (10) herein, to
terminate this Agreement.
4. Compensation.
a. Salary. For all services rendered by Employee, pursuant to
the terms of this Agreement, and in consideration of the execution of this
Agreement by Employee, the Company shall pay Employee an initial starting salary
equal to that received by Xxxxx X. Xxx and, thereafter, as may be determined
from time to time by the Board of Directors to reasonably reflect employee's
then current value and contributions to the Company.
5. Benefits. Employee shall be entitled to participate in
the Company's benefit programs maintained by the Company for the
benefit of employees, in general, in accordance with and pursuant
to the terms of all such plans. Employee shall also be entitled to
receive any other benefits as may, from time to time, be awarded to
him by the Board of Directors.
6. Expenses. The Company shall reimburse Employee for all
authorized and reasonable expenses incurred by Employee during his
employment by the Company. Employee shall be reimbursed expenses
a reasonable time after submitting an expense report in the form
provided by and in compliance with the Company's policies.
7. Covenant Not to Compete and Non-Disclosure of
Information.
a. Covenant Not to Compete. Employee acknowledges and
recognizes the highly competitive nature of Company's business, and that the
goodwill, continued patronage, information and business contacts, including
clients, constitute a substantial asset of the Company having been acquired
through considerable time, money and effort. Accordingly, in consideration of
the execution of this Agreement, Employee agrees to the following:
i. During the Restrictive Period (as hereinafter defined), within the
Restricted Area (as hereinafter defined), Employee will not individually, or in
conjunction with others, directly or indirectly engage in any business
activities, whether as an officer, director, proprietor, employer, partner,
independent contractor, investor (other than as a holder of less than five
percent (5%) of the outstanding capital stock of the corporation), consultant,
advisor, agent or otherwise, which conflict with the Company's business or
Employee's duties.
ii. During the Restrictive Period and within the Restricted Area,
Employee will not directly or indirectly compete with the Company by soliciting,
inducing or influencing any individuals having business or prospective
relationships with the Company to discontinue or reduce the extent of such
relationship with the Company, or to support any business ventures by Employee
in violation of this Agreement.
iii. During the Restrictive Period and within the Restrictive Area,
Employee will not (a) directly or indirectly recruit, solicit or otherwise
influence any employee or agent of the Company to discontinue such employment or
agency relationship with the Company, or (b) employ or seek to employ, or cause,
assist, or permit any business which competes directly or indirectly with the
Company to employ or seek to employ, any agent or employee of the Company.
iv. During the Restrictive period, Employee will not interfere with or
disrupt or attempt to disrupt any past, present or prospective relationship,
contractual or otherwise, between the Company and any customer, employee or
agent of the Company.
v. This covenant is a restrictive covenant and Employee has knowingly
and willingly granted this to the Company and that, further, the entire
Employment Agreement is contingent upon said covenant.
b. Non-Disclosure of Information. Employee acknowledges that
the Company's trade secrets, private or secret processes, methods and ideas, as
they exist from time to time, customer lists and information concerning the
Company's products, services, training methods, development, technical
information, marketing activities and procedures, credit and financial data
concerning the Company, access to and knowledge of the industry in which the
Company's business is and will be conducted, Employee agrees that all
Proprietary Information heretofore or in the future obtained by the Employee as
a result of the Employee's association with the Company shall be considered
confidential.
In recognition of this fact, Employee agrees that Employee will never
use or disclose any of such Proprietary Information for the Employee's own
purposes or for the benefit of any person or other entity or organization
(except the Company) under any circumstances, unless the Employee is compelled
by court order to disclose such Proprietary Information, or unless Employee
obtains prior written permission from the Company to disclose such Proprietary
Information.
c. Documents. "Documents" shall mean all original
written, recorded or graphic matters whatsoever, and any and all
copies thereof, including, but not limited to: paper; books; records; tangible
things; correspondence; communications; telex messages; memoranda; work-papers;
reports; affidavits; statements; summaries; analysis; evaluations; client
records and information; agreements; agendas; advertisements; instructions;
charges; manuals; brochures; publications; directories; industry lists;
schedules; price lists; client lists; statistical records; training manuals;
books of accounts; records and invoices reflecting business operations; E-mail;
computer printouts; computer disks; and all things similar to any of the
foregoing however denominated.
d. Restrictive Period. "Restrictive Period" shall be
deemed to be during the Term of this Agreement and any extension
thereof, and for a period of twenty-four (24) months following
termination of this Agreement, regardless of the reason(s) for
termination.
e. Restricted Area. "Restricted Area" shall be deemed
to mean within the State of Florida, Costa Rica, or any other
geographical locale that the Company is doing business in or has
plans to do business in, including Central America, the Caribbean,
and the Southeast United States.
It is understood by and between the Company and Employee that the
foregoing covenants in Paragraphs 7a. and 7b. are essential elements of this
Agreement, and that but for the agreement by employee to comply with such
covenants the Company would not have agreed to enter into this Agreement. Such
covenants by Employee shall be construed to be agreements independent of any
other provisions of this Agreement, and shall survive the termination of this
Agreement and Employees employment with the Company for a period of twenty-four
(24) months after the termination of Employee's employment or five (5) years
from the execution of this Agreement, whichever is longer. The existence of any
other claim or cause of action, whether predicated on any other provision of
this Agreement, or otherwise, as a result of the relationship between the
Parties, shall not constitute a defense to the enforcement of such covenants
against Employee.
f. Remedies.
i. Employee acknowledges and agrees that the Company's remedy
at law for a breach or threatened breach of any of the provisions of Paragraphs
7a. and 7b. herein would be inadequate and the breach shall be deemed as causing
irreparable harm to the Company. In recognition of this fact, in the event of a
breach by Employee of any of the provisions of Paragraphs 7a. and 7b., Employee
agrees that, in addition to any remedy at law available to the Company,
including, but not limited to, monetary damages, all rights of Employee to
payment or otherwise under this Agreement and all amounts then or thereafter due
Employee from the Company under this Agreement may be terminated and the
Company, without posting any bond, shall be entitled to obtain and Employee
agrees not to oppose the Company's request for equitable relief in the form of
specific performance, temporary restraining order, temporary or permanent
injunction, or any other equitable remedy which may be then available to the
Company.
ii. Employee acknowledges that the granting of a
temporary injunction, temporary restraining order or permanent
injunction, merely prohibiting the use of Proprietary Information would not get
an adequate remedy upon breach or threatened breach of Paragraphs 7a. and 7b.
and consequently agrees, upon proof of any such breach, to the granting of
injunction relief prohibiting any form of competition with the Company. Nothing
herein contained shall be construed as prohibiting the Company from pursuing any
other remedies available to it for such breach or threatened breach.
g. Attorney's Fees. Employee agrees that in the
event the Company is required to engage an attorney to enforce the
terms of the covenants in Paragraphs 7a. and 7b. of this Agreement,
Employee shall pay all costs and expenses, whether or not a suit or
complaint is filed in any court of competent jurisdiction, including a
reasonable attorney's fee for the Company's attorney.
8. Working Conditions. Employee shall have a private
office and support staff, including stenographic help and other
facilities and services as are suitable and appropriate for the performance of
his duties. Employee shall keep normal business hours and conduct business at
the Company's offices.
9. Outside Business Interests. Employee acknowledges that he has an
active legal practice which he has been divesting himself of for the past twelve
months and which, if continued, would be in violation of Paragraph 2. As a
condition of his employment, Employee agrees to fully divest himself of his
legal practice, known as "The Law Office of Xxxx X. XxXxxx", within six (6)
months of the company's shares being offered to the general public pursuant to
its Section 504 and Form "D" filing. In the interim, Employee agrees to fully
disclose to the Company and to respond to all reasonable inquiries by the
Company with regard to the status of his divestment in "The Law Office of Xxxx
X. XxXxxx". The Company acknowledges and agrees that with certain active cases,
divestment will require a court order approving withdrawal of Employee as
attorney of record. If for any reason the Court will not grant Employee's motion
to withdraw, then the Employee, being forced to continue representation, will
seek assistance of associate counsel to handle much, if not all, of the work
involved on such cases. Upon execution of this Agreement, Employee agrees not to
solicit or accept any additional legal work. It being the stated intent of the
Parties that Employee not be actively participating as a lawyer in any cases six
(6) months after the execution of this Agreement, and, in the interim, to take
all reasonable and necessary efforts to minimize his time spent on his legal
practice so that his full attention can be devoted to the Company's business.
10. Termination.
a. Termination Without Cause. the Company and the
Employee may terminate this Agreement without cause upon giving
sixty (60) days prior written notice. During such sixty (60) day
period, Employee shall continue to perform his duties pursuant to
this Agreement, and the Company shall continue to compensate
Employee in accordance with this Agreement.
11. Termination
b. Mutual Agreement. The Company and Employee may
terminate this Agreement by mutual agreement.
c. Immediate Termination. This
Agreement may be terminated immediately by the Company upon the
occurrence of any of the following events:
i. Any material violation of this Agreement; or
ii. The death of Employee; or
iii. The disability or incapacity of Employee; or
iv. The willful engagement and misconduct that is
materially injurious to the Company, monetarily or otherwise; or
v. Employee's commission of any act or acts
constituting a felony under the laws of the United States or any
State thereof.
d. Termination After Failure to Cure Breach. If the
Employee commits a material breach of any provision of this
Agreement, the Company may terminate the Agreement at any time, if after
providing written notice to Employee of the alleged breach or failure, the
breach or failure remains uncured for a period of ten (10) days after receipt of
such notice.
11. 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; by overnight
delivery; by courier; or by confirmed telecopy, in the case of the Employee to
the Employee's last place of business or residence as shown on the records of
the Company, or in the case of the Company to its principal office, or such
other place as the Company may designate.
12. 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
confirm or perfect title to any property transferred hereunder or
otherwise to carry out the intent and purposes of this Agreement.
b. Costs and Expenses. Each Party hereto agrees to pay
its own costs and expenses incurred in negotiating this Agreement
and consummating the transactions described herein.
c. Time. Time is of the essence.
d. Entire Agreement. 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.
e. 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 of modification is
sought.
f. Choice of Law. This Agreement will be interpreted,
construed and enforced in accordance with the laws of the State of
Florida.
g. 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.
h. Pronouns. All pronouns and any variation thereof
shall be deemed to refer to the masculine, feminine, neuter,
singular, or plural as the context may require.
i. Construction. This Agreement shall be
construed neither against nor in favor of either of the Parties
hereto, but rather in accordance with the fair meaning thereof.
j. 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 ant such Party of any succeeding breach of that provision or a
waiver by such Party of any breach of any other provision.
k. 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 unenforeceability 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 provision had never been contained herein. If any court determines
that any provision of Paragraph eight (8) hereof is unenforceable because of the
duration or scope of such provision, such court shall have power to reduce the
scope or duration of such provision, as the case may be, and, in its reduced
form, such provision shall then be enforceable.
l. Binding Nature. This Agreement will be binding
upon and will inure to the benefit of any successors of the
Company.
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.
Employee acknowledges that he has read all of the terms of this
Agreement, fully understands them, has made a voluntary decision to execute this
Agreement and agrees to abide by its terms and conditions.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first written in Pinellas County, Florida.
WITNESSES: Pocotopaug Investment, Inc.
a Florida corporation
Print: By: Xxxx X. XxXxxx
Its: President
(Corporate Seal)
Print: Xxxx X. XxXxxx
"EMPLOYEE"
