EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is
made and entered into this 28th day of April, 1997, and is
effective as of its execution (the "effective date") between AQUA
XXXXX BOTTLING & DISTRIBUTION, INC., a Colorado for profit
corporation registered to do business in Florida, (the "Company"),
and XXXX X. XXXXXXXX, XX. (the "Employee").
WHEREAS, the Company is a Colorado for profit
corporation registered to do business in Florida; and
WHEREAS, the Company's business plan calls for
it to engage in the bottling and distribution of water to the
general public and the acquisition of water treatment companies;
and
WHEREAS, the Employee has provided valuable
telecommunications and computer services, has provided invaluable construction
services, and has been active as a full participating partner with Xxxx X.
XxXxxx since October, 1996, and in providing said valuable services to the
Company has been instrumental in allowing the Company to move forward to a point
where it is about to become fully operational and where the Company's common
stock will be trading on the NASD; and
WHEREAS, in providing the valuable services
described above, Employee has not only expended virtual full time efforts on
behalf of the Company and its predecessor, but has foregone substantial income
producing opportunities and has provided said valuable services without
compensations; and
WHEREAS, the Employee is desirous of continued
employment by the Company and the Company is desirous of Employee's
continued employment; and
WHEREAS, the Company has agreed to continue the
Employee's employment upon certain terms and conditions, one of
which is the execution of the Agreement by Employee; 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; and
WHEREAS, the Employment is an officer,
Secretary, and Director of the Company.
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, and Employee hereby accepts employment, upon the terms and
conditions hereinafter set forth.
2. Authority and Power During Employment
Period. The duties of Employee 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.
Notwithstanding the foregoing, the Employee has
disclosed, and the Company is aware, that the Employee does outside consulting
through SAIC. Said consulting is not in the water industry nor will any of the
Company's proprietary information be in conflict with Employee and upon
Employee's agreement that his salary will reflect his ability to fully commit to
the Company, the Company agrees that the Employee may continue providing
part-time consulting services to SAIC and its clients. However, Employee agrees
that should the providing of those services cause a detriment to the Company,
that he will either cease providing those services or will voluntarily terminate
his employment with the Company.
3. Term. The term of the employment
hereunder will commence upon execution of this Agreement and shall continue for
one (1) year. Such term shall automatically be extended for each successive year
thereafter, 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 9 herein, to terminate this employment
relationship.
a. Probationary Period.Notwithstanding the foregoing, Employee has been advised
and acknowledges that he, as with all Company employees, is subject to a ninety
(90) say probationary period from May 5, 1997.
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 Seventy Two Thousand
Dollars ($72,000) per year which salary shall be paid twice monthly.
Notwithstanding the foregoing, Employee has voluntarily agreed to assist the
Company's anticipated cash flow by accruing a portion of his salary which
portion, shall be mutually agreed by and between the Company and the Employment
from time to time. For all accrued salary, Employee shall be paid interest on
the accrued amount and/or shall have the opportunity, at his option, and subject
to board approval, to convert the accrued salary, or a portion of it, to Aqua
Xxxxx common stock on a ratio mutually agreed upon between the Company and the
Employee.
b. Aqua Xxxxx Common Stock. As and for additional compensation
to Employee, the Company agrees to issue, in Employee's name, five hundred
thousand (500,000) shares of its Common Stock. The Company shall deliver to
Employee one hundred thousand (100,000) shares of its Common Stock as soon as
Employee's probationary period is completed. Thereafter, the Company will
deliver to Employee one hundred thousand (100,000) shares of its Common Stock in
twelve (12) month increments until all of the shares have been delivered to
Employee. Shares which have not been delivered to Employee will be held in
escrow, pursuant to an escrow agreement, by the Company's attorney or other
designated and mutually agreed upon escrow agent. In the event that the
employment relationship between the Company and the Employee ceases before all
of the above-described common stock have been delivered
to Employee, then Employee agrees to execute all necessary documents to have the
undelivered common stock reissued in the Company's name. For all common stock
being held in escrow, Employee agrees to execute a proxy agreement whereby the
Company, or its designee, shall have the right to vote the undelivered common
stock. The Company agrees that Employee may designate any sitting board member
as his proxy holder by written notice to the Company.
5. ESOP and ESAP. The Company agrees that for a period of three (3)
years, Employee shall be awarded common stock pursuant to any stock award or
stock option programs in an amount equal to common stock offered to Xxxx XxXxxx
or Xxxxxx Xxxxx pursuant to the Company's ESOP or ESAP programs.
6. 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.
7. 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.
8. 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, employer 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 8a. and 8b. 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
8a. and 8b. 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 8a. and 8b., 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 8a. and 8b. 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 8a.
and 8b. 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.
9. Working Conditions. Employee
shall have an 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.
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.
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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.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first written in Pinellas County, Florida.
WITNESSES: AQUA XXXXX BOTTLING & DISTRIBUTION, INC.,
a Colorado corporation
Print: By: Xxxx X. XxXxxx
Its: President
(Corporate Seal)
Print: XXXX X. XXXXXXXX, XX.
"EMPLOYEE"
