Exhibit 10.4
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AMENDED EMPLOYMENT AGREEMENT
THIS AMENDED EMPLOYMENT AGREEMENT (THE "AGREEMENT") IS ENTERED INTO BY
AND AMONG XXXXX XXXXXXX (THE EMPLOYEE") AND XSTREAM BEVERAGE GROUP, INC., A
NEVADA CORPORATION ("XSTREAM"), XSTREAM AND THE EMPLOYEE BEING SOMETIMES
HEREINAFTER COLLECTIVELY TO AS THE "PARTIES" OR GENERICALLY AS A "PARTY".
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements hereby exchanged, as well as of the sum of Ten ($10.00) Dollars and
other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the Parties, intending to be legally bound, hereby agree as
follows:
Witnesseth:
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ARTICLE ONE
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TERM, RENEWALS, EARLIER TERMINATION
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1.1 Term.
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Subject to the provisions set forth herein, the term of the Employee's
employment hereunder shall be deemed to have commenced as of June 1, 2003 and
shall continue until December 31, 2006.
1.2 Renewals.
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(A) This Agreement shall be renewed automatically, after expiration of
the original term, on a continuing annual basis, unless the Party wishing not to
renew this Agreement provides the other Party with written notice of its
election not to renew ("Termination Election Notice") on or before the 30th day
prior to termination of the then current term.
(B) In the event that in conjunction with a renewal of this Agreement,
a Party desires a modification of the terms of this Agreement that are not of
general application (e.g., the provisions pertaining to salary, commissions,
etc.), then:
(1) Such Party shall provide the other with a written notice
specifying the requested modifications (the "Modification Request Notice") on or
before the 45th day prior to termination of the then current term which;
(2) If the modifications specified in the Modifications
Request Notice are accepted in writing by the other Party prior to expiration of
the then current term, the Modifications Request Notice shall be deemed a
written amendment to this Agreement, effective as of the first day of the new
renewal term;
(3) If the Party receiving the Modifications Request Notice
finds the proposed modifications unacceptable, it may initiate negotiations to
reach compromise modifications with the Party providing the Modifications
Request Notice, which must be concluded and reflected in a written amendment to
this Agreement prior to the end of the then current term, failing which, the
provisions of Section 1.2(B)(4) will be deemed in effect;
(4) If the modifications specified in the Modifications
Request Notice are not accepted in writing by the other Party prior to
expiration of the then current term, the Modifications Request Notice shall be
deemed a Notice of Termination and this Agreement will expire effective as of
the close of business on the last day of the then current term.
1.3 Earlier Termination.
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XStream shall have the right to terminate this Agreement prior to the
expiration of its Term or of any renewals thereof:
(a) For Cause:
(1) XStream may terminate the Employee's employment under this
Agreement at any time for cause.
(2) Such termination shall be evidenced by written notice
thereof to the Employee, which notice shall specify the cause for termination.
(3) For purposes hereof, the term "cause" shall mean:
(A) The inability of the Employee, through sickness
or other incapacity, to discharge his duties under this Agreement for 90 or more
consecutive days or for a XStream of 180 or more days out of a period of 270
days;
(B) The failure of the Employee to abide by the
directions of Xstream's board of directors;
(C) Dishonesty; theft; insubordination or conviction
of a crime;
(D) Material default in the performance of the
Employee's obligations, services or duties required under this Agreement (other
than due to illness) or material breach of any provision of this Agreement,
which default or breach has not been completely remedied within five days after
written notice of such default or breach.
(b) Deterioration or Discontinuance of Business:
(1) In the event that XStream discontinues operating its
business, this Agreement shall terminate as of the last day of the month on
which it ceases operation with the same force and effect as if such last day of
the month were originally set as the termination date hereof; provided, however,
that a reorganization or merger of XStream shall not be deemed a termination of
its business.
(c) Death:
This Agreement shall terminate immediately on the death of the
Employee; however, all accrued compensation at such time shall be promptly paid
to the Employee's estate. 1.4 Severance Payments and Alternatives to Termination
In the event this Agreement is terminated for reasons other than for
cause as described in Section 1.3(a)(3)(b) or (c) above, the Employee shall be
entitled to receive:
(A) All salaries and reimbursements earned through the date of
termination;
(B) An amount equal to the greater of 200% of the Employee's then
prevailing salary or the remaining compensation due under this Agreement
whichever is less;
(C) Continued participation in those medical, life and disability
insurance benefits, if any, which are provided to the Employee as of the last
date of employment and continue for a period of one year following the last date
of employment with the XStream;
(D) In the event of a change in control (as defined below), Employee
shall have the option at any time after the date that the change in control
occurs to terminate his employment. Under such a change in control termination,
the Employee will receive from XStream compensation in the amount equal to 2.99
times the Base Salary, less any Base Salary paid to him from the date of the
change in control to the date of termination. The Employee shall have the option
to receive this change in control payment in (i) equal installments in the same
amount and at the same periodic intervals as if Employee had remained employed
by XStream or (ii) in a single lump sum payment. A Change in Control shall mean
the occurrence of any event resulting in the current control shareholders
individually or collectively beneficially own less than 50% of the then
outstanding common stock.
1.5 Final Settlement.
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Upon termination of this Agreement the Employee or the Employee's
representative shall execute and deliver to XStream on a form prepared by
XStream, a release of all claims except such claims as may have been submitted
pursuant to the terms of this Agreement and which remain unpaid, and, shall
forthwith tender to XStream all records, manuals and written procedures, as may
be desired by it for the continued conduct of its business.
Article Two
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Scope of Employment
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2.1 Retention.
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XStream hereby hires the Employee and the Employee hereby accepts such
employment, in accordance with the terms, provisions and conditions of this
Agreement.
2.2 General Description of Duties.
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(A) The Employee shall serve as the Chief Executive Officer.
(B) The Employee shall oversee all operational issues related to the
ongoing business needs of XStream. The Employee shall at all times be
accountable to Xstream's Board of Directors. The Employee is expected to work a
minimum of 40 hours per week and devote his full time and attention to the
operations of XStream. However, nothing shall prohibit the Employee from
engaging in charitable and civic activities and managing his personal passive
investments, provided that such passive investments are not in a company which
competes in a business similar to that of Xstream's business.
(C) The Employee hereby represents and warrants to XStream that he is
subject to no legal, self regulatory organization (e.g., National Association of
Securities Dealers, Inc.'s bylaws) or regulatory impediments to the provision of
the services called for by this Agreement, or to receipt of the compensation
called for under this Agreement or any supplements thereto; and, the Employee
hereby irrevocably covenants and agrees to immediately bring to the attention of
XStream any facts required to make the foregoing representation and warranty
continuingly accurate throughout the term of this Agreement, or any supplements
or extensions thereof.
2.3 Exclusivity.
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(A) Unless specifically authorized by this Agreement or is otherwise
authorized by XStream's board of directors, on a case by case basis, in writing,
all of the Employee's business time shall be devoted exclusively to the affairs
of XStream.
(B) Without limiting the generality of the foregoing, the Employee
covenants to perform the employment duties called for hereby in good faith,
devoting substantially all business time, energies and abilities thereto and
will not engage in any other business or commercial activities for any person or
entity without the prior written consent of Xstream's Board of Directors.
2.4 Limitations on Services
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(A) The Parties recognize that certain responsibilities and obligations
are imposed by federal and state securities laws and by the applicable rules and
regulations of stock exchanges, the National Association of Securities Dealers,
Inc., in-house "due diligence" or "compliance" departments of Licensed
Securities Firms, etc.; accordingly, the Employee agrees that he will not:
(1) Release any financial or other material information or
data about XStream without the prior written consent and approval of Xstream's
General Counsel or Securities Counsel;
(2) Conduct any meetings with financial analysts without
informing Xstream's General Counsel and board of directors in advance of the
proposed meeting and the format or agenda of such meeting.
(B) In any circumstances where the Employee is describing the
securities of XStream to a third party, the Employee shall disclose to such
person any compensation received from XStream to the extent required under any
applicable laws, including, without limitation, Section 17(b) of the Securities
Act.
(C) Rendering his services, the Employee shall not disclose to any
third party any confidential non-public information furnished by XStream or
otherwise obtained by it with respect to XStream, except on a need to know
basis, and in such case, subject to appropriate assurances that such information
shall not be used, directly or indirectly, in any manner that would violate
state or federal prohibitions on xxxxxxx xxxxxxx of Xstream's securities.
(D) The Employee shall not take any action which would in any way
adversely affect the reputation, standing or prospects of XStream or which would
cause XStream to be in violation of applicable laws.
Article Three
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Compensation
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3.1 Compensation.
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As consideration for the Employee's services to XStream the Employee
shall be entitled to the following compensation:
The Employee's salary during the first year of this agreement shall be
$85,000 (the Base Salary). In addition to the Base Salary, the Employee shall be
entitled to receive such bonuses as may be determined by XStream from time to
time during the term of this agreement. The Base Salary shall be payable in
accordance with the Xstream's customary payroll practices and procedures and
shall be prorated for any partial year during the Term.
THE EMPLOYEE AS A CONDITION OF ENTERING INTO THIS NEW AGREEMENT WAIVES
ALL RIGHTS TO ANY STOCK OPTIONS WHICH HAVE BEEN VESTED OR WERE PREVIOUSLY
GRANTED.
3.2 Benefits
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(A) The Employee shall be entitled to any benefits generally made
available to all other employees including without limitation medical,
disability and life insurance plans and programs established by XStream subject
however to any eligibility requirements and other provisions of such plans. The
Employee shall also be entitled to receive such fringe benefits as may be
generally provided by XStream from time to time to its employees, in accordance
with the policies of XStream in office from time to time.
(B) The Employee shall be entitled to four (4) weeks paid vacation
annually, to be take at such time(s) as shall not, in the reasonable judgment of
XStream's Board of Directors, interfere with the fulfillment of the Employee's
duties under this Agreement. The Employee shall be entitled to as many holidays,
sick days and personal days as are generally provided from time to time to
XStream's employees in accordance with XStream's policies in effect from time to
time.
(C) The Employee shall be entitled to receive an automobile allowance
in an amount of $500 per month. In addition, the Company shall pay or reimburse
the Employee for all approved travel, entertainment, and other expenses incurred
by him in connection with the performance of his duties hereunder in accordance
with the policies and procedures established by XStream.
3.3 Indemnification.
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XStream will defend, indemnify and hold the Employee harmless from all
liabilities, suits, judgments, fines, penalties or disabilities, including
expenses associated directly, therewith (e.g. legal fees, court costs,
investigative costs, witness fees, etc.) resulting from any reasonable actions
taken by him in good faith on behalf of XStream, its affiliates or for other
persons or entities at the request of the board of directors of XStream, to the
fullest extent legally permitted, and in conjunction therewith, shall assure
that all required expenditures are made in a manner making it unnecessary for
the Employee to incur any out of pocket expenses; provided, however, that the
Employee permits the majority stockholders of XStream to select and supervise
all personnel involved in such defense and that the Employee waive any conflicts
of interest that such personnel may have as a result of also representing
XStream, its stockholders or other personnel and agrees to hold them harmless
from any matters involving such representation, except such as involve fraud or
bad faith.
Article Four
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Special Covenants
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4.1 Confidentiality, Non-Circumvention and Non-Competition.
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During the term of this Agreement, all renewals thereof and for a
period of two years after its termination, the Employee hereby irrevocably
agrees to be bound by the following restrictions, which constitute a material
inducement for Xstream's entry into this Agreement:
(A) Because the Employee will be developing for XStream, making use of,
acquiring and/or adding to, confidential information of special and unique
nature and value relating to such matters as XStream's trade secrets, systems,
procedures, manuals, confidential reports, personnel resources, strategic and
tactical plans, advisors, clients, investors and funders; as material inducement
to the entry into this Agreement by XStream, the Employee hereby covenants and
agrees not to personally use, divulge or disclose, for any purpose whatsoever,
directly or indirectly, any of such confidential information during the term of
this Agreement, any renewals thereof, and for a period of two years after its
termination.
(B) The Employee hereby covenants and agrees to be bound as a fiduciary
of XStream, as if the Employee were a partner in a partnership bound by the
partnership opportunities doctrine, as such concept has been judicially and
legislatively developed in the State of Florida, and consequently, without the
prior written consent of XStream, on a specific, case by case basis, the
Employee shall not, among other things, directly or indirectly:
(1) Engage in any activities, whether or not for profit,
competitive with Xstream's business.
(2) Solicit or accept any person providing services to
XStream, whether as an employee, consultant or independent contractor, for
employment or provision of services.
(3) Induce any client or customer of XStream to cease doing
business with XStream or to engage in business with any person engaged in
business activities that compete with Xstream's business.
(4) Divert any business opportunity within the general scope
of Xstream's business and business capacity, to any other person or entity.
4.2 Special Remedies.
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In view of the irreparable harm and damage which would undoubtedly
occur to XStream as a result of a breach by the Employee of the covenants or
agreements contained in this Article Four, and in view of the lack of an
adequate remedy at law to protect XStream's interests, the Employee hereby
covenants and agrees that XStream shall have the following additional rights and
remedies in the event of a breach hereof:
(A) In addition to and not in limitation of any other rights, remedies
or damages available to XStream, whether at law or in equity, it shall be
entitled to a permanent injunction in order to prevent or to restrain any such
breach by the Employee, or by the Employee's partners, agents, representatives,
servants, employers, employees, affiliates and/or any and all persons directly
or indirectly acting for or with him and the Employee hereby consents to the
issuance of such a permanent injunction; and
(B) Because it is impossible to ascertain or estimate the entire or
exact cost, damage or injury which XStream may sustain prior to the effective
enforcement of such injunction, the Employee hereby covenants and agrees to pay
over to XStream, in the event the employee violates the covenants and agreements
contained in Section 4.2 hereof, the greater of:
(1) Any payment or compensation of any kind received by the
Employee or by persons affiliated with or acting for or with the Employee,
because of such violation before the issuance of such injunction, or
(2) The sum of Ten Thousand ($10,000.00) Dollars per
violation, which sum shall be liquidated damages, and not a penalty, for the
injuries suffered by XStream as a result of such violation, the Parties hereto
agreeing that such liquidated damages are not intended as the exclusive remedy
available to XStream for any breach of the covenants and agreements contained in
this Article Four, prior to the issuance of such injunction, the Parties
recognizing that the only adequate remedy to protect XStream from the injury
caused by such breaches would be injunctive relief.
4.3 Cumulative Remedies.
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The Employee hereby irrevocably agrees that the remedies described in
Section 4.2 shall be in addition to, and not in limitation of, any of the rights
or remedies to which XStream is or may be entitled to, whether at law or in
equity, under or pursuant to this Agreement.
4.4 Acknowledgment of Reasonableness.
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(A) The Employee hereby represents, warrants and acknowledges that
having carefully read and considered the provisions of this Article Four, the
restrictions set forth herein are fair and reasonable and are reasonably
required for the protection of the interests of XStream, its officers, directors
and other employees; consequently, in the event that any of the above-described
restrictions shall be held unenforceable by any court of competent jurisdiction,
the Employee hereby covenants, agrees and directs such court to substitute a
reasonable judicially enforceable limitation in place of any limitation deemed
unenforceable and, the Employee hereby covenants and agrees that if so modified,
the covenants contained in this Article Four shall be as fully enforceable as if
they had been set forth herein directly by the Parties.
(B) In determining the nature of this limitation, the Employee hereby
acknowledges, covenants and agrees that it is the intent of the Parties that a
court adjudicating a dispute arising hereunder recognize that the Parties desire
that these covenants not to circumvent, disclose or compete be imposed and
maintained to the greatest extent possible.
4.5 Unauthorized Acts.
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The Employee hereby covenants and agrees not do any act or incur any
obligation on behalf of XStream except as authorized by its board of directors.
4.6 Covenant not to Disparage
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The Employee hereby irrevocably covenants and agrees that during the
term of this Agreement and after its termination, he will refrain from making
any remarks that could be construed by anyone, under any circumstances, as
disparaging, directly or indirectly, specifically, through innuendo or by
inference, whether or not true, about XStream, its constituent members, or their
officers, directors, stockholders, employees, agent or affiliates, whether
related to the business of XStream, to other business or financial matters or to
personal matters.
Article Five
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Miscellaneous
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5.1 Notices.
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(A) (1) All notices, demands or other communications hereunder
shall be in writing, and unless otherwise provided, shall be deemed to have been
duly given on the first business day after mailing by registered or certified
mail, return receipt requested, postage prepaid, addressed as follows:
To the Employee:
Xxxxx Xxxxxxx 0000, Xxxx Xxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
To XStream:
XStream Beverage Group, Inc. One Park Place, 000 X.X. 00xx Xxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
(2) Copies of notices will also be provided to such other
address or to such other person as any Party shall designate to the other for
such purpose in the manner hereinafter set forth.
5.2 Amendment.
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(A) No modification, waiver, amendment, discharge or change of this
Agreement shall be valid unless the same is in writing and signed by the Party
against which the enforcement of said modification, waiver, amendment, discharge
or change is sought.
(B) This Agreement may not be modified without the consent of a
majority in interest of Xstream's Board of Directors. .
5.3 Merger.
(A) This instrument contains all of the understandings and agreements
of the Parties with respect to the subject matter discussed herein.
(B) All prior agreements whether written or oral, are merged herein and
shall be of no force or effect.
5.4 Survival.
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The several representations, warranties and covenants of the Parties
contained herein shall survive the execution hereof and shall be effective
regardless of any investigation that may have been made or may be made by or on
behalf of any Party.
5.5 Severability.
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If any provision or any portion of any provision of this Agreement, or
the application of such provision or any portion thereof to any person or
circumstance shall be held invalid or unenforceable, the remaining portions of
such provision and the remaining provisions of this Agreement or the application
of such provision or portion of such provision as is held invalid or
unenforceable to persons or circumstances other than those to which it is held
invalid or unenforceable, shall not be effected thereby.
5.6 Governing Law and Venue.
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This Agreement shall be construed in accordance with the laws of the
State of Florida but any proceeding arising between the Parties in any matter
pertaining or related to this Agreement shall, to the extent permitted by law,
be held in Broward County, Florida.
5.7 Litigation.
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(A) In any action between the Parties to enforce any of the terms of
this Agreement or any other matter arising from this Agreement, the prevailing
Party shall be entitled to recover its costs and expenses, including reasonable
attorneys' fees up to and including all negotiations, trials and appeals,
whether or not litigation is initiated.
(B) In the event of any dispute arising under this Agreement, or the
negotiation thereof or inducements to enter into the Agreement, the dispute
shall, at the request of any Party, be exclusively resolved through the
following procedures:
(1) (A) First, the issue shall be submitted to mediation
before a mediation service in Broward County, Florida.
(B) The mediation efforts shall be concluded within
ten business days after their initiation unless
the Parties unanimously agree to an extended mediation period.
(2) In the event that mediation does not lead to a resolution
of the dispute then at the request of any Party, the Parties shall submit the
dispute to binding arbitration before an arbitration service located in Broward
County, Florida.
(3) (A) Expenses of mediation shall be borne by XStream,
if successful.
(B) Expenses of mediation, if unsuccessful and of
arbitration shall be borne by the Party or Parties
against whom the arbitration decision is rendered.
(C) If the terms of the arbitration award does not
establish a prevailing Party, then the expenses of
unsuccessful mediation and arbitration shall be borne equally by the Parties.
5.8 Benefit of Agreement.
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(A) This Agreement may not be assigned by the Employee without the
prior written consent of XStream.
(B) Subject to the restrictions on transferability and assignment
contained herein, the terms and provisions of this Agreement shall be binding
upon and inure to the benefit of the Parties, their successors, assigns,
personal representative, estate, heirs and legatees.
5.9 Captions.
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The captions in this Agreement are for convenience and reference only
and in no way define, describe, extend or limit the scope of this Agreement or
the intent of any provisions hereof.
5.10 Number and Gender.
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All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural, as the identity of the Party or
Parties, or their personal representatives, successors and assigns may require.
5.11 Further Assurances.
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The Parties hereby agree to do, execute, acknowledge and deliver or
cause to be done, executed or acknowledged or delivered and to perform all such
acts and deliver all such deeds, assignments, transfers, conveyances, powers of
attorney, assurances, recipes, records and other documents, as may, from time to
time, be required herein to effect the intent and purposes of this Agreement.
5.12 Status.
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Nothing in this Agreement shall be construed or shall constitute a
partnership, joint venture, agency, or lessor-lessee relationship; but, rather,
the relationship established hereby is that of employer-employee in XStream.
5.13 Counterparts.
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(A) This Agreement may be executed in any number of counterparts.
(B) Execution by exchange of facsimile transmission shall be deemed
legally sufficient to bind the signatory; however, the Parties shall, for
aesthetic purposes, prepare a fully executed original version of this Agreement,
which shall be the document filed with the Securities and Exchange Commission.
In Witness Whereof, the Parties have executed this Agreement, effective
as of the last date set forth below.
Signed, Sealed & Delivered
In Our Presence
The Employee
/s/Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
Dated: June 4, 2003
XStream Beverage Group, Inc.
A Nevada corporation.
/s/Xxxxxxxx Xxxxxxxxxx
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BY:
Xxxxxxxx Xxxxxxxxxx
Chairman of the Board of Directors
(CORPORATE SEAL)
Attest:
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Dated:
