EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made affective as of March 15, 2003 (the "Effective
Date") by-and between ChampionLyte Beverages, Inc., a Florida Corporation
("Company" or "the Company") The Company is a wholly owned subsidiary of
ChampionLyte Holdings, Inc., a Florida corporation (the "Parent Company") and
Xxxxx Birnbo ("Executive").
WITNESSETH:
WHEREAS, Company desires to employ, the Executive upon and subject to the terms
and conditions set forth herein and the Executive desires to accept such
employment; and
WHEREAS, the parties wish to set forth the terms and conditions upon which the
Executive is to be employed;
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
1. NATURE OF EMPLOYMENT The Company hereby agrees to employ the Executive, and
the Executive hereby agree to be employed by Company, as its President. In such
capacity, Executive shall perform such duties and have such responsibilities as
may be assigned by the Board from time to time that are normally inherent in
such capacities in companies of similar size and character. In addition, during
the Employment Term, the Company shall appoint Executive to serve as a member of
the Board; provided the Company agrees that Executive shall be indemnified for
serving in such capacity on a basis no less favorable than is provided by the
Company's By-laws and to other members of the Board. The Company accepts that
the Executive's principal place of business shall be located in Essex County,
New Jersey and that relocation is not an option.
2. BEST EFFORTS The Executive shall serve Company faithfully and on a full-time
basis and devote all of her attention, energy, effort, technical knowledge,
know-how and skill to best promote the business and interests of Company. The
Executive shall at all times use her best efforts b, preserve and maintain the
business relationships between Company and its Executive, clients and suppliers.
During the Term of this Agreement the Executive shall not engage in any other
business, profession or occupation far compensation or otherwise which would
conflict with the rendition of such services either directly or indirectly,
without the prior written consent of the Board. The Company agrees that the
Executive $ay continue with her past activities as a member of a non-profit
Board of Directors.
3. TERM OF EMPLOYMENT The initial term of employment shall be two (2) years (the
"Term"), beginning on the%% Date unless sooner terminated in accordance with
Section 5 below. After the initial two (2) year agreement, ,the agreement shall
automatically renew every March 15th unless one party notifies the other 14
writing, certified mail, return receipt requested, no later than thirty days
(30) prior to the anniversary date W the Agreement, of the intention to not
renew Agreement.
4.0 COMPENSATION
4.1 BASE SALARY -The Company shall, pay the Executive an annual base salary of
$96,000 for the period beginning on the date hereof and ending on June 14, 2003,
$108,000 for the period beginning on June 15, 2003 and ending on September 14,
2003 and $120,000 for the period beginning on September 15, 2003 and ending on
March 14, 2005 (the "Base Salary"), payable in biweekly installments, less taxes
required by law lo be withheld. Should the Term of Employment be renewed on or
before March 14, 2005, the, Base Salary shall increase to no less than $132,000
per annum for the renewal period. If Executive must assume additional
'responsibilities following the initial Term of Employment, as a result of
acquisitions or otherwise, the parties will mutually agree to increase
Executive's base salary commensurate with the increase in responsibilities.
4.2 WARRANT BONUS. In consideration he entry into this Agreement, Executive
shall be entitled to receive 50,000 warrants to purchase the Parent Company's
common stock for a term of two years at a price equal to $10 par share. These
options to be evidenced by a written form to issued within 30 days following the
execution of this Agreement in addition should the Executive be employed by the
Company 90 days from the Effective Date herein, the Executive will receive a
Warrant pursuant to purchase an additional 100,000 shares of the Parent
Company's stock in 90 days from the Effective Date at an exercise price equal to
100% of the Parent Company's closing stock price as of that date. These warrants
shall carry a term of two years. Parent Company agrees to grant to Executive
'piggyback' registration rights for any warrants issued to Executive prior to
the Parent Company filing any registration statement for the Parent Company's
common shares.
4.3 SHARES OF STOCK.
4.4 BONUS. The Executive shall be entitled to certain bonuses ad follows: (1) an
annual bonus, equal to 3% of the Company's annual net, pre-tax profits as
reported on the Company's Annual Report on Form 10-K for the fiscal year
preceding the date of determination. The Bonus shall be initially payable on
March 31, 2004 and on each anniversary thereafter during the Term. (2) Personal
Performance Commission based on sales made as a direct result of Executive's own
efforts, equal to 1% of Gross Sales, payable on a, quarterly basis. Executive
shall continuo to receive commissions on sales made as a direct result of
Executive's own efforts for a period of two (2) years following her employment
separation from the Company regardless of the reason for the employment
separation This clause shall be null and void should the executive be terminated
pursuant to Section 5.4 hereunder (termination for cause). (3) Override
commission of sales personnel reporting to Executive equal to 1/2% of Gross
Sales, payable on a quarterly basis. Gross Sales is defined as Company's actual
cash receipts after all deductions for returns, credits and other reductions in
the normal course of business.
4.5 BENEFITS. The Executive shall be entitled to four (4) weeks &id vacation and
Five (5) personal days and eleven (11) holidays There shall be carryover of
unused vacation and personal days from year to year. The Executive shall be
entitled to participate in all benefit plans maintained by Company, specifically
including but not limited b health insurance, life insurance, travel insurance,
and group disability insurance, in accordance with the terms of' the plans. As
shall be determined by the Board of Directors the Executive shall be entitled to
personal leave. Beginning August 1, 2003, the Company will pay the Executive's
COBRA premiums for a period of
2
eighteen (18) months or until the Company provides the Executive with a health
insurance plan that is the same or better in all terms and conditions as the
health insurance plan the Executive had received from her previous employer.
4.6 EXPENSES DURING THE TERM. The Executive shall be reimbursed by Company for
expenses reasonably and necessarily incurred by her in connection with her
duties on behalf of Company, subject to appropriate documentation in accordance
with Company's expense reimbursement policy; provided that expenses in excess of
$1,000 shall require the Prior approval of the Chief Executive Officer or the
Board of Directors. Payment for expenses shall be provided to Executive at the
end of each month for expenses incurred the previous month. The Executive shall
be reimbursed for charges attributable to her mobile telephone, internet access,
fax lines, home telephone, gas, mileage at the standard rate of $.30 per mile;
tolls and business entertainment expenses. The travel and entertainment expenses
shall be subject to a budget that both the Company and the Executive shall
develop and agree to.
5.0 TERMINATION
5.l. TERMINATION UPON DISABILITY If Executive becomes totally or partially
physically or mentally disabled, such that she is unable with or without a
reasonable accommodation to perform her duties hereunder for a period of 60 days
in any 120 consecutive calendar day period or for an aggregate of l20 days
within any 12 consecutive month period, the Company shall have the right to
terminate the Executive's employment hereunder by giving the Executive thirty
(30) days(written notice to that effect. In the event of Executive's termination
pursuant to this Section 5.1, the Company shall pay Executive, in full
satisfaction of all of its obligations hereunder, all compensation and benefits
to which she is entitled through the date of termination, but shall be entitled
to a credit against this obligation in the amount of any disability insurance
benefits received by Executive during such period from a disability insurance
policy paid for by the Company, or from the Social security disability program.
5.1.1 DETERMINATION OF DISABILITY Any question as to the existence of the
disability of the Executive as to which the Executive and the Company cannot
agree shall be determined in writing by a qualified independent physician
mutually acceptable to the Executive and the Company. If the Executive and the
Company cannot agree as to a qualified independent physician, each shall appoint
such a Physician and those two physicians shall select a third who shall make
such determination in writing. The determination of disability made in writing
to the Company and the Executive shall be final and conclusive for all purposes
of the Agreement. Notwithstanding the forgoing, the receipt of long-term
disability benefits by the Executive shall constitute conclusive proof of the
Executive's disability for purposes of this Agreement.
5.2. TERMINATION UPON DEATH If the Executive dies, her employment and the
Company's obligation to pay the Base Salary and Bonus, if any, shall terminate
as of the date of Executive's death; provided, however, that Executive's estate
shall be entitled to receive any unpaid amounts of the Annual Salary, and any
Bonus earned up to the date on which Executive's death occurs, which payments
shall be made at such times as they would have been paid to Executive.
3
5.3 TERMINATION BY MUTUAL AGREEMENT Executive 's employment under Agreement may
be terminated by the mutual agreement of the parties to this Agreement, on such
terms as may be agreed.
5.4 TERMINATION BY THE COMPANY FOR CAUSE
5.4.1 The Company may terminate Executive's employment hereunder for Cause.
5.4.2 For purposes of this Section 5 "Cause" shall mean: (i) commission of a
willful act of dishonesty in the course of the Executive's duties hereunder (ii)
conviction by a court of competent jurisdiction of a crime constituting a felony
or conviction in respect of any act involving fraud, dishonesty or moral
turpitude, (iii) the Executive's continued, habitual intoxication or performance
under the influence of controlled substances during working hours, after the
Company shall have provided written notice to the Executive and gave the
Executive thirty (30) days within which to commence rehabilitation with respect
thereto, and the Executive shall have failed to commence such rehabilitation,
(iv) frequent or extended, and unjustifiable (not as a result of incapacity or
disability) absenteeism, (v) engaging in any act which has the potential for
material injury to the Company, (vi) the Executive's willful personal
misconduct, action or inaction, inability or refusal to perform duties and
responsibilities described in Section 1 above or to carry our directives of the
Board, provided however that as President of the Company, all operating
decisions shall be made by the executive or (vii) material non-compliance with
the term of this Agreement.
5.4.3 In the event the Company terminates Executive's employment hereunder for
Cause, the Company shall pay her all compensation, prorated bonus, and benefit
due to her pursuant to this Agreement through the date of termination in full
satisfaction of all of the Company's obligations to Executive.
5.5 TERMINATION FOR OTHER REASONS The Company may in its sole discretion,
terminate the Executive's employment for any reason within the first 90 days of
the Effective Date of this Agreement. In the event the Company terminates under
clause, the Company shall pay to Executive the sum of three months severance
payable in three equal monthly amounts and with no further obligation on the
part of the Company After 90 days of employment, in the event the Company
terminates the Executive's employment for reasons other than for Cause or
pursuant to the provisions outlined in sections 5.1, 5.2, or 5.3, the Company
shall continue to pay the Executive her Base Salary, benefits, commissions, and
prorated bonus, for a period of six months fallowing the date she receives
notice of such termination. After 180 days of employment, in the event the
Company terminates the Executive's employment for reasons other than for Cause
or pursuant to the provisions outlined in section 5.1, 5.2, or 5.3, the Company
shall continue to pay to Executive her Base Salary, benefits commissions, and
prorated bonus to the end of the term of the Agreement.
Executive may terminate her employment for Good Reason upon: (A) the assignment
to Executive of any duties substantially inconsistent with her status as
President or any substantial adverse alteration in the nature or status of her
responsibilities; (B) a material diminution by Company of Executive's aggregate
compensation and benefits; (C) the demand that Executive relocate from Essex
County, New Jersey; or (D) any
4
material breach by Company of its commitments under this Agreement, in each case
which is not cured within thirty (30) days following demand to the Board by
Executive in writing detailing the factual basis upon which Executive believes
Good Reason for termination exists. The continued employment of Executive shall
constitute consent to, or a waiver of rights with respect to, any circumstances
constituting Good Reason hereunder. If Executive should terminate for Good
Reason, as defined herein, Executive shall be entitled to receive all
compensation, benefits, bonuses and Commissions to the end of the Term of the
Agreement, to be distributed according to the pay schedules set forth in this
Agreement.
5.6 RELEASE. Notwithstanding any other provision of this Agreement to the
contrary, the Executive acknowledge and agrees that any and all payments to
Which the Executive is entitled under his Section are conditioned upon and
subject to the Executive 's execution or general waiver and release, in such
reasonable form as shall be prepared by the Company, of all claims the Executive
may have against the Company.
6.0 PROTECTION OF CONFIDENTIAL INFORMATION.
6.1 DEFINITION The Company and its affiliates has acquired and will develop
certain trade secrets and other confidential and proprietary information,
including without limitation methods of operation, financial information,
strategic planning, operational budgets and strategic, software (including
specifications, programs and documentation), marketing information and
strategies, merger and acquisition strategies payroll data, management systems,
client and vendor lists and client and vendor information (collectively the
"Confidential Information"), to which the Executive will have access as a result
of her employment. Confidential Information does not include information
generally known in me industry or which has become pan of the public domain
other than by reason ,of the Executive's breach of this Agreement. Confidential
Information does not include any and all information which the Executive has
brought to the Company as a result of her years of experience in the beverage
industry. Such information shall include, but not be limited to, the information
that Executive brings to the Company in terms of her contacts in the industry
and her knowledge about pricing and vendors.
6.2 RETURN Upon termination of her employment for any reason, Executive will
immediately deliver to Company all papers, books, manuals, lists, software,
computer discs and data, correspondence and documents (in any medium whether in
writing, on magnetic tape or in electronic or other form) containing or relating
to the Confidential Information, and she will neither copy nor take any such
material with her upon leaving Company's employ.
6.3 NONDISCLOSURE Executive will not at any time either while employed by
Company or after the termination of her employment reveal any Confidential
Information to any other person or business entity, except as required by her
duties for Company or by law.
6.4 REMEDIES Executive acknowledges and agrees that (a) Company is engaged in a
highly competitive business, (b) the Confidential Information of Company would
be valuable to Company's competitors by virtue of the fact that it is not
generally known to the public or in the Industry; (c) the provisions of this
Section are fair and reasonable to
5
protect Company's business interests and competitive position and are of vital
concern to Company, and, (d) breach of this Section by Executive would cause
Company irreparable harm, for which monetary damages would not adequately
compensate Company, Therefore, the Executive agrees that the restrictions set
forth in this Section may be enforced by injunction, without the requirement of
any bond, in addition to whatever other rights or remedies are available to
Company.
8.0 NON-COMPETITION AND NON-SOLICITATION
8.1 NON-SOLICITATION; NON-INTERFERENCE, During the Term an for a period of one
year after the termination of Executive's employment with Company, Executive
will not directly or indirectly, on her own behalf or on behalf of any other
person or business entity, (i) induce, entice, solicit, hire or attempt to hire,
or assist in the inducement, enticement, solicitation, hiring, or attempted
hiring of, any of Company's or its affiliates' employees to work for any other
person or business entity, in any other capacity or (ii) influence or attempt to
influence any person that is a contracting party with Company or its affiliates
as of the date of this Agreement or at any time during the Term of this
Agreement, to terminate any written or oral agreement with Company or its
affiliates.
8.2 NON-COMPETITION Executive will not, at any time during the Term and for a
period of one year following termination of employment hereunder, compete with
Company directly or indirectly (whether as owner, partner, employer, agent,
principal, stockholder, corporate officer, director, consultant, independent
contractor, Executive or otherwise in any capacity whatsoever. This clause shall
remain in effect if the Company is making payment to Executive under the
termination clauses hereunder or lf the Executive is terminated pursuant to
Section 5.4 above. "Compete" means owning, managing, operating, consulting for,
being employed by, or otherwise providing services to, a business that sells
products or services that compete with any products or services sold by Company
or its affiliates and which is located within the United States.
8.3 INJUNCTIVE RELIEF Executive acknowledges and agrees that (a) Company is
engaged in a highly competitive business, (b) Company's relationships with its
customers am fundamental to Company's business success, (c) the provisions of
this Section are fair and reasonable to protect Company's Confidential
Information, customer relationships, customer relationships, except as those
pre-existing relationships of the Executive prior to her Employment, business
interests and competitive position, business interests and competitive position,
and, (d) breach of this Section by Executive would cause Company irreparable
harm, for which monetary damages would not adequately compensate Company.
Therefore Executive agrees that the restrictions set forth in this Section may
be enforced by injunction, without the requirements of any bond, in addition to
whatever other rights or remedies are available to Company. In the event Company
brings an action for a temporary or permanent injunction to enforce this
Section, the period of time during which such action is pending and Executive's
breach of this Section continues, but no injunction has been issued, shall be
added to the period of the restriction sought to be enforced.
9. Arbitration Any controversy or claim arising out d or relating to this
Agreement, or the breach thereof, with the exception (at Company's option) of
sections 6.7 and 8, shall be settled by binding arbitration in the county of
Dade, State of Florida, in accordance with the then-existing Employment Dispute
Resolution Rules of the American Arbitration
6
MISSING PAGE
7
(c) This Agreement is the joint product of the Company and the Executive and
each provision hereof has been subject to the mutual consultation, negotiation
and agreement of the Company and the Executive and shall not be construed for or
against either party hereto.
(d) This Agreement shall be governed by and construed in accordance with the
laws of the State of Florida without reference to its principles of conflict of
laws, or to the principles of conflict of laws of any other jurisdiction which
would cause the application of the law of any jurisdiction other then the State
of Florida.
(e) This Agreement may be signed in counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement as of
the date first above written.
COMPANY
BY: /s/ Xxxxx Xxxxxxxx
-----------------------------------
EXECUTIVE
BY: /s/ Xxxxx Bimbo
-----------------------------------
8
