Execution Copy
EMPLOYMENT AGREEMENT
AGREEMENT, made as of November 1, 1997, by and between VERMONT PURE
HOLDINGS, LTD., a Delaware corporation (the "Company"), VERMONT PURE SPRINGS,
INC., a Delaware corporation that is a wholly owned subsidiary of the Company
("Springs"), and XXXXX X. XXXXXXXXX (the "Executive").
WHEREAS, the Executive has been employed by the Company and/or Springs;
and the parties to this Agreement desire that the Company continue to employ the
Executive and wish to enter into this Agreement setting forth the terms of
Executive's employment by the Company; and the Executive desires to accept such
employment and to enter into this Agreement,
NOW THEREFORE, it is agreed as follows:
1. Employment.
1.1 General. The Company shall employ the Executive (either directly or
by employment with Springs), and the Executive accepts employment, as Vice
President of Finance, Chief Financial Officer and Treasurer of the Company, upon
the terms and conditions described herein. During the "Employment Term" (as
defined in Section 2.1 hereof), the Executive shall devote all of his business
time, attention and skills to the business and affairs of the Company.
1.2 Duties. The Executive shall at all times render his services at the
direction of the Board of Directors of the Company (the "Board of Directors")
and its Chief Executive Officer and President, and his duties generally will
include those required for the day-to-day and long-term financial reporting and
management, planning, development, operation and advancement of the business of
the Company, Springs and their affiliates. The Company may assign to the
Executive such other executive and financial administrative duties for the
Company or any affiliate of the Company as may be determined by the Board of
Directors or the Chief Executive Officer, consistent with the Executive's status
as Vice President of Finance, Chief Financial Officer and Treasurer. The
Executive agrees to diligently use his best efforts to promote and further the
reputation and good name of the Company and perform his services well and
faithfully.
2. Term and Termination.
.
2.1 Term. The term of employment by the Company of the Executive
pursuant to this Agreement shall commence on November 1, 1997 and terminate on
November 1, 2001 (the "Employment Term"), subject to the provisions of Section
2.2.
2.2 Early Termination. Notwithstanding anything to the contrary
contained in this Agreement, Executive's employment may be terminated prior to
the end of the Employment Term only as set forth in this Section.
-1-
2.2.1 Termination Upon Resignation or Death of Executive. The
Executive's employment shall terminate upon the resignation or death of the
Executive. In case of termination pursuant to this Section 2.2.1, the Company
shall pay to the Executive (or, in case of his death, to his estate or his
beneficiary designated in writing), the base salary earned by the Executive
pursuant to Section 3, prorated through the date of resignation or death.
2.2.2 Termination Upon Disability of Executive. The
Executive's employment shall terminate by reason of the disability of the
Executive. For this purpose, "disability" shall mean the Executive's inability,
by reason of accident, illness or other physical or mental disability
(determined in good faith by the Board of Directors with the advice of a
qualified and independent physician), to perform satisfactorily the duties
required by his employment hereunder for any consecutive period of 120 calendar
days. In case of termination pursuant to this Section, the Executive shall
continue to receive his base salary prorated through the time of such
termination, less any amount the Executive receives during such period from any
Company-sponsored or Company-paid source of insurance, disability compensation
or government program.
2.2.3 Termination Upon Mutual Consent. The Executive's
employment may be terminated by the mutual consent of the Company and the
Executive on such terms as they may agree.
2.2.4 Termination For Cause. The Executive's employment shall
terminate immediately on notice to the Executive upon a good faith finding of
the Board of Directors that the Executive has (i) wilfully or repeatedly failed
to perform his duties in accordance with the provisions of this Agreement
following 30 days' prior written notice to the Executive and failure of the
Executive to cure any deficiency, (ii) committed a breach of any provision of
Section 4 hereof, (iii) misappropriated assets or perpetrated fraud against the
Company, (iv) been convicted of a crime which constitutes a felony, or (v) been
engaged in the illegal use of controlled or habit forming substances. In the
event of termination for cause, the Company shall pay the Executive his base
salary prorated through the date of termination.
2.2.5 Termination by Company Without Cause. The Company
may terminate the Executive's employment at any time and for any reason, without
cause, upon written notice to the Executive.
In the event of termination pursuant to this Section 2.2.5
during the Company's fiscal year ending October 1998, the Company shall pay or
provide to the Executive the following termination benefits: (i) an amount equal
to the sum of 1.5 times the Executive's annual base salary as of the termination
date, plus $50,000, payable over a period of 18 months after the date of
termination, in regular monthly installments, less income taxes and other
applicable withholdings, and (ii) the Executive's "Fringe Benefits" (as defined
below) for a period of 18 months.
-2-
In the event of termination pursuant to this Section 2.2.5
during the Company's fiscal years ending October 1999, October 2000 and October
2001, the Company shall pay or provide to the Executive the following
termination benefits: (i) an amount equal to the sum of 1.0 times the
Executive's annual base salary as of the termination date, plus $50,000, payable
in each case over a period of 12 months after the date of termination, in
regular monthly installments, less income taxes and other applicable
withholdings, and (ii) the Executive's "Fringe Benefits" (as defined below) for
a period of 12 months.
2.2.6 Fringe Benefits. The obligation of the Company to
provide "Fringe Benefits" following any termination pursuant to Section 2.2.5
shall mean that the Executive's participation (including dependent coverage) in
the life and health insurance plans of the Company in effect immediately prior
to the termination shall be continued, or substantially equivalent benefits
provided, by the Company, at a cost to the Executive no greater than his cost at
the date of such termination, for the relevant period of 18 months or 12 months,
as the case may be. Notwithstanding the foregoing, if the Company shall be
unable to provide for the continuation of an insurance benefit (such as life
insurance) because such benefit was provided pursuant to an insurance policy
that does not provide for the extension of such insurance benefit following
termination of the employment of the Executive, then the Executive may purchase
insurance providing such insurance benefit and, whether or not the Executive so
elects to purchase insurance, the Company's only obligation with respect to such
insurance benefit shall be to reimburse the Executive for his premium costs, up
to a maximum aggregate amount for all policies of insurance purchased by the
Executive pursuant to this sentence of $7,000. If the Company is obligated
pursuant to the so-called "COBRA" law to offer the Executive the opportunity for
a temporary extension of health coverage ("continuation coverage"), then the
Executive shall elect continuation coverage, and the premium cost of such
coverage shall be borne by the Company and the Executive as provided in the
first sentence of this Section 2.2.6. Continuation coverage provided pursuant to
COBRA shall terminate in accordance with COBRA. To the extent that any benefit
required to be provided to the Executive by the Company pursuant to Section
2.2.5 shall be provided to the Executive by any successor employer, the
Company's obligation to provide that benefit to the Executive shall be
correspondingly offset or shall cease, as the case may be. In no event shall the
Company have any obligation to provide Fringe Benefits after the expiration of
the relevant period of 18 months or 12 months, as the case may be, following the
date of termination. The Executive shall not be entitled to any expense
allowance, automobile allowance or relocation allowance following the
termination of his employment for any reason.
2.2.7 Change in Control Constitutes Termination Without Cause.
A "Change of Control" (as defined in this Section) will be deemed to be a
termination of the Executive's employment within the meaning of Section 2.2.5. A
"Change of Control" shall mean a change in control of the Company (and not any
person or entity that hereafter becomes a successor to all or substantially all
of the business or assets of the Company by reason of a Change of Control) and
shall be deemed to have taken place if : (i) a third person, including a "group"
as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, becomes
the beneficial owner of shares
-3-
of the capital stock of the Company having more than 50% of the total number of
votes that may be cast for the election of directors of the Company, (ii) the
sale or other disposition (excluding mortgage or pledge) of all or substantially
all of the assets of the Company, or (iii) the merger or other business
combination of the Company with or into another corporation or entity pursuant
to which the Company will not survive or will survive only as a subsidiary of
another corporation or entity, in either case with the stockholders of the
Company prior to the merger or other business combination holding less than 50%
of the voting shares of the merged or combined companies or entities after such
merger or other business combination. The rights and obligations created by this
Agreement with respect to a Change of Control shall apply only with respect to
the first Change of Control after the date of execution of this Agreement, and
not with respect to any subsequent transaction.
2.2.8 No Other Termination Benefits. The Executive understands
and agrees that the termination payments and benefits described in this Section
2 constitute all of the payments and benefits to which he (or his estate or
beneficiary) will be or become entitled to receive in case of termination of his
employment, and that such payments and benefits are in lieu of any and all other
payments and benefits of every kind or description to which he may be entitled,
including, without limitation, any right to receive a bonus payment or any
portion thereof.
3. Compensation. During the Employment Term, the Company shall pay, in
full payment for all of the Executive's services rendered hereunder, the
following compensation:
3.1 Base Salary. The Company shall pay the Executive an annual base
salary, less income taxes and other applicable withholdings, of $75,000 in
Company's standard payroll installments. Commencing November 1, 1997, the Board
of Directors will review the annual base salary amount as soon as practicable
after the end of each fiscal year of Company to consider whether or not it
should be increased. Such determination shall be in the sole discretion of the
Board of Directors using such criteria as they deem relevant, including, but not
limited to, the performance of the Company and the Executive.
3.2 Bonuses. While the Executive is employed by the Company, the
Executive will be eligible to receive the bonuses described in this Section 3.2.
Unless otherwise specified, all incentive goals set forth in this Section shall
be based upon or derived from the Company's audited consolidated financial
statements prepared in accordance with generally accepted accounting principles
as reported on by the Company's independent accountants.
3.2.1 Fiscal Year 1997 Sales Bonus. With respect to the
Company's fiscal year ending October 1997, if the Company has annual sales equal
to or in excess of $15,000,000, then there shall be a bonus of $30,000.
3.2.2 Fiscal Years 1998, 1999, 2000 and 2001 Budgeted EBITDA
Bonus. With respect to the Company's fiscal year ending October 1998, October
1999, October 2000 and
-4-
October 2001: if the Company has actual annual earnings before interest, taxes,
depreciation and amortization ("EBITDA") which, expressed as a percentage of
target annual EBITDA approved in the budget for that fiscal year by the Board of
Directors, are at least 90% of such target annual EBITDA, then there shall be a
bonus as set forth in the following table. Bonuses under this Section 3.2.2 are
non-cumulative.
Actual EBITDA Divided by Target EBITDA Bonus
-------------------------------------- -----
less than 90% of target - $ -0-
at least 90% but less than 91% of target - 25,000
at least 91% but less than 92% of target - 27,500
at least 92% but less than 93% of target - 30,000
at least 93% but less than 94% of target - 32,500
at least 94% but less than 95% of target - 35,000
at least 95% but less than 96% of target - 37,500
at least 96% but less than 97% of target - 40,000
at least 97% but less than 98% of target - 42,500
at least 98% but less than 99% of target - 45,000
at least 99% but less than 100% of target - 47,500
at least 100% but less than 102% of target - 50,000
at least 102% but less than 104% of target - 52,500
at least 104% but less than 106% of target - 55,000
at least 106% but less than 108% of target - 57,500
at least 108% but less than 110% of target - 60,000
at least 110% but less than 112% of target - 62,500
at least 112% but less than 114% of target - 65,000
at least 114% but less than 116% of target - 67,500
at least 116% but less than 118% of target - 70,000
at least 118% but less than 120% of target - 72,500
at least 120% of target or greater - 75,000
3.2.3 Time of Bonus Payments. Each bonus required to be paid
to the Executive under Section 3.2 shall be paid as soon as practicable after
the filing with the Securities and Exchange Commission of the Company's Annual
Report on Form 10-K or 10-KSB or successor form, as the case may be.
3.3 Vacation. The Executive shall be entitled to three (3) weeks of
vacation in each 12-month period during the Employment Term. No more than two
(2) weeks may be taken consecutively.
3.4 Executive Benefit Plans. The Executive shall be entitled to
participate in all plans or programs sponsored by the Company for employees in
general, including without limitation, participation in any group health,
medical reimbursement, or life insurance plans.
-5-
3.6 Expense Allowance. The Company shall reimburse the Executive for
all reasonable and necessary expenses incurred by him from time to time in the
performance of his duties hereunder, against receipts therefor in accordance
with the then effective policies and requirements of the Company.
3.7 Disability Insurance; Automobile Allowance. The Company shall have
no obligation to provide disability insurance to the Executive. The Company
agrees to provide an allowance of up to $4,000.00 per year to reimburse the
Executive for the actual cost of premiums incurred by the Executive for
disability insurance obtained by the Executive. The Company shall provide a
vehicle, equivalent in value to one affordable under an automobile allowance of
$650 per month.
4. Protection of Confidential Information; Non-Compete
4.1 Acknowledgments. The Executive acknowledges that:
(a) The Executive has obtained and, during his employment by the
Company, will obtain secret and confidential information concerning the business
of the Company and its affiliates, including, without limitation, customer lists
and sources of supply, their needs and requirements, the nature and extent of
contracts with them, and related cost, price and sales information.
(b) The Company and its affiliates will suffer substantial and
irreparable damage which will be difficult to compute if, during the period of
his employment with the Company or thereafter, the Executive should enter a
competitive business or should divulge secret and confidential information
relating to the business of the Company and its affiliates heretofore or
hereafter acquired by him in the course of his employment with the Company.
(c) The provisions of this Agreement are reasonable and necessary for
the protection of the business of the Company and its affiliates.
4.2 Confidentiality. The Executive agrees that he will not at any time,
either during the Employment Term or thereafter, divulge to any person, firm or
corporation any information obtained or learned by him during the course of his
employment with the Company, with regard to the operational, financial, business
or other affairs of the Company and its affiliates, and their respective offices
and directors, including, without limitation, trade secrets, customer lists,
sources of supply, pricing policies, operational methods or technical processes,
except (i) in the course of performing his authorized duties hereunder, (ii)
with the Company's express written consent; (iii) to the extent that any such
information is lawfully in the public domain other than as a result of the
Executive's breach of any of his obligations hereunder; or (iv) where required
to be disclosed by court order, subpoena or other government process. In the
event that the Executive shall be required to make any disclosure pursuant to
the provisions of clause (iv) of the preceding sentence, the Executive promptly,
but in no event more than 48 hours after learning of such subpoena, court order,
or other government process, shall notify the Company, by personal
-6-
delivery or by fax, confirmed by mail, to the Company and, if the Company so
elects and at the Company's expense, the Executive shall: (a) take all
reasonably necessary steps requested by the Company to defend against the
enforcement of such subpoena, court order or other government process, and (b)
permit the Company to intervene and participate with counsel of its choice in
any proceeding relating to the enforcement thereof.
4.3 Return of Property. Upon termination of his employment with the
Company, or at any time the Company may so request, the Executive will promptly
deliver to Company all memoranda, notes, records, reports, manuals, drawings,
blueprints and other documents (and all copies thereof) relating to the business
of the Company and its affiliates and all property associated therewith, which
he may then possess or have under this control.
4.4. Non-Competition. During the Employment Term and for a period equal
to the time during which Executive receives severance payments for benefits
pursuant to Section 2 of this Agreement or for a period of 12 months in the
event the Executive is terminated without entitlement to severance benefits
herein, the Executive shall not, without the prior written permission of the
Company, in the United States, its territories and possessions, directly or
indirectly, (i) enter into the employ of or render any services to any person,
firm or corporation engaged in any Competitive Business (as defined below); (ii)
engage in any Competitive Business for his own account; (iii) become associated
with or interested in any Competitive Business as an individual, partner,
shareholder, creditor, director, officer, principal, agent, employee, trustee,
consultant, advisor or in any other relationship or capacity; (iv) employ or
retain, or have or cause any other person or entity to employ or retain, any
person who was employed or retained by the Company or its affiliates while the
Executive was employed by the Company; or (v) solicit, interfere with, or
endeavor to entice away from the Company or its affiliates any of their
customers or sources of supply. However, nothing in this Agreement shall
preclude the Executive from investing his personal assets in the securities of
any Competitive Business if such securities are traded on a national stock
exchange or in the over-the-counter market and if such investment does not
result in his beneficially owning, at any time, more than 4.9% of the
publicly-traded equity securities of such competitor. "Competitive Business"
shall mean any business or enterprise which (a) designs, sells, manufactures,
markets and/or distributes spring or purified water products or still spring or
purified water beverages, or (b) engages in any other business in which Company
or its affiliates is involved at any time during the 12-month period immediately
prior to the termination of the Executive's employment.
4.5 Enforcement. If the Executive commits a breach, or threatens to
commit a breach, of any of the provisions of Section 4, the Company shall have
the right and remedy to have the provisions of this Agreement specifically
enforced by any court having jurisdiction over the matter, it being acknowledged
and agreed by the Executive that the services being rendered hereunder to the
Company are of a special, unique and extraordinary character and that any such
breach or threatened breach will cause irreparable injury to the Company and
that money damages will not provide an adequate remedy to the Company. Such
right and remedy shall be in addition to, and not in lieu of, any other rights
and remedies available to the Company under law or equity-
-7-
4.6 "Blue Penciling". If any provision of Section 4 is held to be
unenforceable because of the scope, duration or area of its applicability, the
tribunal making such determination shall have the power to modify such scope,
duration or area, or all of them, and such provision or provisions shall then be
applicable in such modified form.
5. Representations of Executive. The Executive represents and warrants to the
Company that the Executive is not a party to or bound by any agreement,
understanding or restriction that would or may be breached by the Executive's
execution and full performance of this Agreement. The Executive expressly
undertakes and agrees that none of his acts or duties hereunder that will
violate any obligations he may have to any prior employer (or will impose on the
Company any liability to any prior employer) and that he has complied with all
requirements of notice applicable to the termination of any prior employment
before he commenced his employment with the Company. The Executive further
represents and warrants that he has delivered to the Company complete copies of
all employment agreements, understanding and restrictions to which he has been
subject at any time during the last five years.
6. Construction of this Agreement.
6.1 Choice of Law. This Agreement is to be construed pursuant
to the laws of Delaware, without regard to the laws affecting choice of law.
6.2 Invalid Agreement Provisions. Should any provision of this
Agreement become legally unenforceable, no other provision of this Agreement
shall be affected, and this Agreement shall continue as if the Agreement had
been executed absent the unenforceable provision.
6.3 No Other Agreements. This Agreement represents the full agreement
between the Company and the Executive with respect to the subject matter hereof
and the Company and the Executive have made no agreements, representations or
warranties relating to the subject matter of this Agreement that re not set
forth herein. This Agreement supersedes the 1994 Agreement, which is hereby
terminated, and any and all other agreements, oral or written, that may define
the employment relationship between the Executive and the Company. This
Agreement may be modified only by written agreement by the Executive and the
Company and may not be modified by any oral agreement.
6.4 Notices. All notices provided for in this Agreement shall be in
writing and shall be deemed to be given when delivered personally to the party
to receive the same, when transmitted by electronic means or when mailed first
class, postage prepaid by certified mail, return receipt requested, addressed to
the party to receive the same at the applicable addresses set forth below or
such other address as the party to receive the same shall have specified by
written notice give in the manner provided for in this Section. All notices
shall be deemed to have been given as of the date of personal delivery,
transmittal or mailing thereof.
-8-
If to the Executive: Xx. Xxxxx X. XxxXxxxxx, XX #0, Xxx 000-0,
Warren, Vermont.
If to the Company: Vermont Pure Holdings, Ltd., Xxxxx 00,
Xxxxxxxxx Xxxx, Xxxxxxxx Xxxxxx, Xxxxxxx 00000, Attention: President, with a
copy to: Xxxx Xxxxxx, Esquire, Xxxxx, Xxxx & Xxxxx LLP, Xxx Xxxx Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000.
6.5 Assignment. This Agreement shall be binding upon and inure to
the benefit of the Company's successors and assigns.
6.6 Disputes and Controversies. The parties hereto agree that in case
of any dispute, controversy or claim arising out of or relating to this
Agreement, other than pursuant to Sections 4 and 6 hereof, the dispute,
controversy or claim shall be determined by arbitration in accordance with the
Commercial Arbit
IN WITNESS WHEREOF, the parties have executed this Agreement on
November 1, 1997.
COMPANY: VERMONT PURE HOLDINGS, LTD.
By:_/S/Xxxxxxx Fallon_________
Name:Xxxxxxx X. Xxxxxx
Title:President
SPRINGS: VERMONT PURE SPRINGS, INC.
By:_/S/Xxxxxxx Fallon_________
Name:Xxxxxxx X. Xxxxxx
Title:President
EXECUTIVE: By:_/S/Xxxxx MacDonald________
Name:Xxxxx X. XxxXxxxxx
