EXHIBIT 6.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into between
ANDRETTI WINE GROUP, LTD. ("AWG") and XXXX X'XXXXXXX ("Employee") (collectively,
the "parties") as of the date set forth below.
RECITALS
The parties acknowledge that the following recitals are accurate and
incorporate them as integral provisions of this Agreement:
WHEREAS, AWG desires to hire Employee as its Chief Executive Officer
("CEO") and Chief Financial Officer ("CFO"), and Employee desires to be employed
by AWG as its CEO and CFO, on the terms and subject to the conditions set forth
below.
NOW, THEREFORE, in consideration of the mutual promises contained in
this Agreement, the parties agree as follows:
AGREEMENTS
1. EMPLOYMENT. AWG hereby employs Employee, and Employee hereby accepts
employment upon the terms and conditions set forth in this Agreement.
2. TERM. The term of this Agreement shall commence on September 1,
2001, and continue for one (1) year (the "Employment Period"), but is subject to
earlier termination as provided in this Agreement. If Employee continues
employment past the Employment Period then employment shall be governed by this
Agreement and the Employment Period will be deemed automatically renewed by both
parties for an additional one (1) year.
3. DUTIES. Employee shall be AWG's CEO and CFO. Employee's duties shall
be (i) duties customarily performed by the CEO and CFO of a company, (ii) duties
described in AWG's Bylaws, and (iii) any other duties assigned to him from time
to time by AWG that bear a reasonable relationship to his position as CEO and
CFO. In addition, Employee is responsible and accountable for the following:
(a) All sales and profits of AWG;
(b) All month-end financial reporting requirements;
(c) All quarterly SEC flings;
(d) To assist auditors when required; and
(e) To assist all brokers and distributors on a weekly
basis. This includes establishing a schedule for
weekly visits to various markets to push case sales.
4. COMPENSATION. AWG shall pay Employee (i) an annual base salary at
the rate of One Hundred Twenty Thousand Dollars ($120,000) ("Base Salary"),
which shall be paid in accordance with whatever payroll practice is adopted by
AWG, and (ii) a bonus target of Twenty-Five Thousand Dollars ($25,000) based on
performance to be determined by AWG's Compensation Committee.
5. BENEFITS. In addition to fringe benefits enjoyed by other employees
of AWG, AWG shall also provide Employee with: option shares to be determined by
AWG's Compensation Committee distributed on or before March of the following
calendar year.
6. TERMINATION WITHOUT CAUSE. At any time after the commencement of
this Agreement, AWG may terminate this Agreement, without cause, effective
fifteen (15) days after written notice is provided to Employee after which time
AWG shall have no further obligations to Employee as provided herein.
7. TERMINATION WITH CAUSE. AWG may terminate this Agreement without
advance notice for just cause after which time AWG shall have no further
obligations to Employee as provided herein. Just cause for termination will
exist for one or more of the following:
(i) An act of fraud, theft or embezzlement against AWG or
any of its customers or employees.
(ii) A breach of any of Employee's duties of loyalty or
honesty to AWG.
(iii) A conviction of Employee (or a plea of nolo
contendere in lieu thereof) for a felony which
involves dishonesty, fraud, or moral turpitude.
(iv) Intentional material misconduct or violation of AWG's
written policies or reasonable specific instructions
from AWG (as long as said policies or instructions do
not require Employee to violate any laws or
reasonable business ethics).
(v) Grossly negligent failure of Employee to perform his
duties to AWG, if Employee fails to cure the grossly
negligent performance within thirty (30) days after
receiving written notice from AWG of the grossly
negligent performance.
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8. TERMINATION UPON DISABILITY. If Employee becomes permanently
disabled, AWG, at its sole discretion, may terminate this Agreement upon thirty
(30) days written notice to Employee. If AWG terminates this Agreement upon
Employee's permanent disability, then AWG agrees to pay Employee his Base Salary
only for one (1) year, regardless of Employee's inability to perform any work
for AWG. Permanent disability means an illness, injury or other physical or
mental condition continuing for at least one hundred and eighty (180)
consecutive days which results in Employee's inability to provide in all
material respects the duties theretofore performed by him under this Agreement,
as determined in good faith by a competent physician selected by AWG.
9. TERMINATION UPON DEATH. If Employee dies, then this Agreement shall
immediately terminate, without obligation of severance or additional
compensation beyond that owed for periods Employee was employed by AWG.
10. EMPLOYEE'S VOLUNTARY TERMINATION. If Employee voluntarily
terminates this Agreement or his employment, then this Agreement shall terminate
immediately and the parties shall have no further obligations to each other as
provided herein.
11. EXPENSES. AWG shall reimburse Employee for all reasonable and
necessary expenses incurred by him in the furtherance of or in connection with
the business of AWG, upon submission by him of reasonable documentation thereof.
12. CONFIDENTIAL INFORMATION. Employee will not at any time, either
during or after his employment with AWG, use or disclose to others any
confidential information about AWG, except as required in the ordinary course of
performing his employment duties. Employee recognizes that if he breaches this
provision, irreparable harm will come to AWG and that the remedy at law is
inadequate; therefore, he agrees that AWG shall be entitled to injunctive relief
against any such actual or threatened breach, in addition to any other remedy
provided by law.
13. NON-COMPETE. (A) In consideration of the employment of Employee and
the compensation referred to in Section 4 hereof, Employee agrees that he will
not for a period of six (6) months immediately following the termination of his
employment under this Agreement, for any reason whatsoever, directly or
indirectly, or on behalf of or in conjunction with any other person, persons,
corporation, partnership or business in the wine industry:
(i) Engage, as an officer, director, shareholder, owner,
partner, joint venture, or in a managerial capacity, whether as an
employee, independent contractor, consultant or advisor, or as a sales
representative, in any business providing the same or similar services
in direct competition with the business of AWG or any of AWG's
subsidiaries or affiliates, within thirty (30) miles of AWG or where
any of AWG's subsidiaries or affiliates conduct business, including any
territory serviced by AWG or any of its subsidiaries or affiliates (the
"Territory");
(ii) Call upon any person who is, at that time, within the
Territory, an employee of AWG (including its subsidiaries and
affiliates) in a managerial capacity for
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the purpose or with the intent of enticing such employee away from or
out of the employ of AWG (including its subsidiaries and affiliates).
(iii) Call upon any business or entity which is, at that time,
or which has been, within one (1) year prior to that time, a customer
of AWG (including its subsidiaries and affiliates) within the Territory
for the purpose of providing the same or similar services in direct
competition with AWG within the Territory.
(iv) Should the Company cease to exist, these clauses
regarding non-compete will be void.
(B) Because of the difficulty of measuring economic losses to AWG as a
result of a breach of the foregoing covenants, and because of the immediate and
irreparable damage that could be caused to AWG for which it would have no other
adequate remedy, Employee agrees that the foregoing covenant may be enforced by
AWG in the event of a breach or threatened breach by employee, by injunctions,
restraining orders or any other remedy provided under the law.
(C) The covenants in this Section 13 are severable and separate, and
the unenforceability of any specific covenant shall not affect the provisions of
any other covenant. Moreover, in the event any court of competent jurisdiction
shall determine that the scope, time or territorial restrictions set forth are
unreasonable, then it is the intention of the parties that such restrictions be
enforced to the fullest extent which the court deems reasonable, and this
Agreement shall thereby be reformed.
(D) All of the covenants in this Section 13 shall be construed as an
agreement independent of any other provision in this Agreement, and the
existence of any claim or cause of action of Employee against AWG, whether
predicated on this Agreement or otherwise, shall not constitute a defense to the
enforcement by AWG of such covenants. It is specifically agreed that the period
of six (6) months stated at the beginning of this Section 13, during which the
agreements and covenants of Employee made in this Section 13 shall be effective,
shall be computed by excluding from such computation any time during which
Employee is in violation of any provision of this Section 13.
14. RETURN OF PROPERTY. All records, business plans, financial
statements, manuals, computers, computer hardware, components and accessories,
computer software, cell phones, pagers, personal data assistants, memoranda,
lists and other property delivered to or compiled by Employee by or on behalf of
AWG or the representatives, dealers or customers thereof which pertain to the
business of AWG shall be and remain the property of AWG and be subject at all
times to the discretion and control thereof. Likewise, all correspondence,
reports, records, charts, client lists and other similar data pertaining to the
business, activities or future plans of AWG which is collected by Employee shall
be delivered promptly to AWG without request by it upon termination of
Employee's employment.
15. INVENTIONS. Employee shall disclose promptly to AWG any and all
significant conceptions and ideas for inventions, improvements and valuable
discoveries, whether patentable
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or not, which are conceived or made by Employee, solely or jointly with
another, during the period of employment or within one (1) year thereafter, and
which are directly related to the business or activities of AWG and which
Employee conceives as a result of Employee's employment by AWG. Employee hereby
assigns and agrees to assign all Employee's interests therein to AWG or its
nominee. Whenever requested to do so by AWG, Employee shall execute any and all
applications, assignments or other instruments that AWG shall deem necessary to
apply for and obtain Letters Patent of the United States or any foreign country
or to otherwise protect AWG's interest therein.
16. TRADE SECRETS. Employee agrees that he will not, during or after
the term of this Agreement with AWG, disclose the specific terms of AWG
relationships or agreements with its significant dealers or customers or any
other significant and material trade secret of AWG, whether in existence or
proposed, to any person, firm, partnership, corporation or business for any
reason or purpose whatsoever.
17. APPLICABLE LAW. This Agreement shall be governed by the laws of the
State of Michigan.
18. AGREEMENT. This Agreement contains the entire understanding between
the parties and cannot be altered or amended except by a written instrument
subsequently executed by the parties hereto. Any waiver of any condition,
obligation or benefit under this Agreement shall not be deemed a waiver of any
subsequent breach or default of any term, condition or limitation. The terms,
conditions and obligations of this Agreement are binding on the respective
heirs, assigns, successors and personal representatives of the parties hereto.
19. SEVERABILITY. In case any provision of this Agreement shall be held
invalid, illegal or unenforceable in whole or in part, neither the validity of
the remaining part of such provision nor the validity of any other provision of
this Agreement shall in any way be affected thereby.
20. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
21. ARBITRATION. Any unresolved dispute or controversy arising under or
in connection with this Agreement shall be settled exclusively by arbitration,
conducted before a panel of three (3) arbitrators in Oakland County, Michigan,
in accordance with the rules of the American Arbitration Association then in
effect. The arbitrators shall not have the authority to add to, detract from, or
modify any provision hereof nor to award punitive damages to any injured party.
A decision by a majority of the arbitration panel shall be final and binding.
Judgment may be entered on the arbitrators' award in any court having
jurisdiction. The prevailing party shall be entitled to recover from the other
party all costs incurred as a result of the arbitration proceedings, including
reasonable attorneys' fees.
(SIGNATURES ON FOLLOWING PAGE)
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IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year written below.
XXXX X'XXXXXXX
By: /s/ Xxxx X'Xxxxxxx
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Dated: 9/1/01
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ANDRETTI WINE GROUP, LTD.
By: /s/ Xxxxxx X. Xxxxxxxx
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Its: Chairman
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Dated: 9/1/01
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