EXHIBIT 10.4
EMPLOYMENT AGREEMENT
This Agreement, made as of this 16th day of September, 1994, by
and between, AQUAPENN SPRING WATER COMPANY, a Pennsylvania business
corporation, hereinafter called the "Employer", and XXXXXX X. XXXXX,
III, an individual, hereinafter called "Employee".
Intending to be legally bound, and in consideration of the
mutual covenants contained herein, the parties hereto agree as
follows:
1. Employment. The Employer shall employ Employee for a one
(1) year term beginning on January 1, 1994 and ending on December 31,
1995. Thereafter, unless this Agreement is terminated in the manner
hereinafter provided, it shall automatically renew for an unlimited
number of successive additional terms of one (1) year duration. This
Agreement may be terminated at the end of a term, upon six (6) months
written notice from one party to the other party.
2. Employee's Duties. During the term of this Agreement,
Employee shall devote all necessary time and his best efforts to
the faithful performance of his duties as President of the
Employer as directed by the Board of Directors and appropriate
officers of the Employer. It is understood between the parties
that said duties shall concentrate in the areas of
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sales and marketing, administration and strategic planning. Employee
shall devote his entire professional time to the affairs of the
Employer. Notwithstanding anything contained herein, Employee may
render reasonable amounts of services as an independent consultant to
other organizations during the term of this Agreement as long as the
activities of such other organizations are not in competition with or
adverse to the activities of the Employer and as long as such
consulting activities do not materially interfere with Employee's
performance of his duties hereunder.
3. Salary. Employee's base salary shall be ONE HUNDRED THIRTY
THOUSAND and NO/100 ($130,000.00) DOLLARS per year, payable in equal
bi-weekly installments. On each anniversary date of this Agreement,
Employee's base salary shall be reviewed and may be increased by an
amount determined by the Employer in its sole discretion.
4. Benefits and Vacation.
a. Benefits. Employee and his dependents (if applicable)
shall be eligible to participate in the Employer's fringe benefit
plans -- both presently existing plans and those plans that may
be adopted in the future in accordance with the terms and
provisions of such plans. The Employer presently has the
following fringe benefit plans in effect:
i. Dental insurance; and
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ii. Disability insurance.
b. Vacation and Personal Days. Employee shall
be entitled to reasonable amounts of vacation and personal
time.
c. Automobile. Employee shall be entitled to an
automobile of reasonable value, of Employee's selection, for
business and/or personal use, furnished at the Employer's
expense. Such automobile shall be replaced every three (3) years
or at the expiration of a lease of appropriate term.
d. Health Insurance. Employee shall be entitled to an
Employer paid policy of health and hospital insurance including
major medical insurance coverage for Employee and his dependents.
5. Stock Options.
a. The Employer shall grant to Employee options to
purchase the common stock of the Employer under the terms set
forth in this paragraph.
b. Beginning with the fiscal year of the Employer
commencing after the date of this Employment Agreement, the
Employer shall grant Employee an option to purchase fifty
thousand (50,000) shares of the common stock of the Employer for
each fiscal year of the Employer during which the Employer's
after-tax profits exceed One Million and NO/100 ($1,000,000.00) Dollars.
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c. Options shall be issued, within thirty (30) days of
the end of each fiscal year of the Employer, if the condition of
subparagraph 5(b) is met.
d. The option price shall be the fair market value of
the Employer's stock on the date of the option grant and the term
during which the option may be exercised shall commence on the
date of the grant and extend for a period of ten (10) years
thereafter.
e. The terms of any option granted to Employee under
this paragraph shall be as set forth in this paragraph and as set
forth in an Option Agreement to be entered into between the
Employer and Employee as soon as is practicable following the
execution of this Agreement.
6. Retirement/Nonqualified Deferred Compensation
Plan.
a. The Employer shall create a bookkeeping reserve
account (the "Nonqualified Deferred Compensation Account") for
Employee which shall be credited for each fiscal year of Employer
with an amount equal to fifteen (15%) percent of the Employee's
salary for such fiscal year.
b. The terms of the Nonqualified Deferred Compensation
Account shall be as set forth in a Nonqualified Deferred
Compensation Plan to be entered into between the Employer and
Employee as soon as is practicable following the execution of
this Agreement.
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c. Nothing contained in this paragraph 6 and no action
taken pursuant to the provisions of this Agreement shall create
or be construed to create a trust of any kind, or a fiduciary
relationship between the Employer and Employee. Any funds which
may be reserved by the Employer to pay for the retirement payment
provided for hereunder shall continue for all purposes to be a
part of the general funds of the Employer and no person other
than the Employer shall by virtue of this Agreement have any
right to any interest in such funds. Any bookkeeping reserve
accounts for such payment will be maintained by the Employer
solely as a convenience in the administration of this Agreement.
To the extent that any person acquires a right to receive
payments from the Employer under this paragraph, such right shall
be no greater than the rights of any unsecured general creditor
of the Employer. Neither Employee nor his representative shall
have any right to commute, sell, assign, transfer, encumber or
otherwise dispose of the right to receive the deferred
compensation benefit provided for hereunder, which payments and
the right thereto are expressly declared to be nonassignable and
nontransferable and any attempted assignment or transfer by
Employee shall be void and of no effect. Title to and beneficial
ownership of any assets, whether cash, investments, life
insurance policies or other assets which the Employer may use to
fund its obligation hereunder shall at all times remain in the
Employer.
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7. Arbitration. Any disputes relating to the interpretation
or application of this Agreement shall be promptly resolved by an
impartial arbitrator pursuant to the rules of the American Arbitration
Association. The parties shall share equally all costs and expenses of
arbitration including the arbitrator's fees; and excluding only their
own attorney's fees, unless the arbitrator shall order either party to
pay any or all of the other's attorneys fees. The award of the
arbitrator shall be final and binding, and immediately enforceable by
either party in any court of competent jurisdiction.
8. Law Applicable. This Agreement shall be
interpreted and enforced in all circumstances according to the
laws of the Commonwealth of Pennsylvania.
9. Notices. Notices to the Employer shall be delivered to:
AquaPenn Spring Water Company
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxxxx, XX 00000
Notices to Employee shall be delivered to:
Xxxxxx X. Xxxxx, III
0000 Xxxxxxxxx Xxxxx
Xxxxx Xxxxxxx, XX 00000
In either case the notice address above may be changed by written
notice of the addressee.
10. Entire Agreement. This Agreement fully integrates all
understandings and agreements between the parties and shall
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constitute the entire agreement between them and supersede any prior
written employment agreement between the parties or any oral
representations of any kind. This Agreement may only be modified in
writing by the voluntary signed consent of both parties. Provided,
however, that if Employee has stock options pursuant to prior
agreements with the Employer, such stock options shall continue in
effect in accordance with the terms of such prior agreement and shall
not be affected by this Agreement.
11. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective
successors in interest. Neither party hereto may assign its interest
without the prior written consent of the other party.
IN WITNESS WHEREOF, the undersigned have executed this Agreement
as of the day and year first written above.
ATTEST: AQUAPENN SPRING WATER COMPANY
/s/ X. X. Xxxxxx, Xx. By: /s/ Xxxxxx X. Xxxxx, III
------------------------------ ---------------------------
, Secretary Xxxxxx X. Xxxxx, III
President
(SEAL)
WITNESS: EMPLOYEE:
Xxxxx X. Xxxxxxxxxx /s/ Xxxxxx X Xxxxx, III(SEAL)
---------------------------- ------------------------------
Xxxxxx X. Xxxxx, III
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