1
Exhibit 10.15
Execution Copy
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") dated as of May 5, 2000,
is by and between VP MERGER PARENT, INC. (to be renamed VERMONT PURE HOLDINGS,
LTD. following the "Effective Date," as defined below), a Delaware corporation
(the "Company"), VERMONT PURE SPRINGS, INC., a Delaware corporation that is a
direct or indirect wholly owned subsidiary of the Company (the "Operating
Company"), and XXXXX X. XXXXX (the "Executive").
The Company, the Operating Company and the Executive agree as follows:
1. EMPLOYMENT.
1.1 GENERAL. The Company shall employ the Executive (either directly
or by employment with the Operating Company), and the Executive accepts
employment, as President of the Company, upon the terms and conditions described
herein. The Executive's employment hereunder will commence on the effective date
(the "Effective Date") of the merger between a wholly owned subsidiary of the
Company and Vermont Pure Holdings, Ltd., a publicly traded Delaware corporation
which will become a wholly owned subsidiary of the Company and be renamed
following the Effective Date, pursuant to the Agreement and Plan of Merger and
Contribution (the "Merger Agreement") by and among the Company, such subsidiary,
Crystal Rock Spring Water Company, a Connecticut corporation ("Crystal Rock"),
and the other parties listed therein, dated as of the date hereof, and will
continue for the Employment Term (as defined in Section 2.1 hereof) unless
terminated sooner as herein provided. During the Employment Term, the Executive
shall devote all of his business time, attention and skills to the business and
affairs of the Company, and will not undertake any commitments that would
interfere with or impair his performance of his duties and responsibilities; it
being understood, however, that the Executive may serve as director of a company
or companies that do not compete with any business of the Company or its
subsidiaries, or as a director or trustee of a charitable organization or
organizations, so long as such service does not interfere with or impair his
performance of his duties and responsibilities to the Company.
Notwithstanding this Section 1.1 or any other provision of this
Agreement, this Agreement shall not be effective until the Effective Date, and
if the Effective Date does not occur on or before the date set forth in Section
10.1(e) of the Merger Agreement, this Agreement shall be of no force or effect.
1.2 DUTIES. The Executive shall at all times render his services at
the direction of the Board of Directors (the "Board of Directors") and the Chief
Executive Officer of the Company, and his duties generally will include those
required for the day to day and long term planning, development and operation of
the Home and Office business of the Company. The Company may assign to the
Executive such other executive and financial administrative duties for the
Company or any affiliate of the Company as may be
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determined by the Board of Directors, consistent with the Executive's status as
President. The Executive agrees to diligently use his best efforts to promote
and further the reputation and good name of the Company and perform his services
well and faithfully.
2. TERM AND TERMINATION.
2.1 TERM. The term of employment by the Company of the Executive
pursuant to this Agreement shall commence on the Effective Date and terminate on
the fifth anniversary of the Effective Date (the "Employment Term"), subject to
the provisions of Section 2.2.
2.2 EARLY TERMINATION. Notwithstanding anything to the contrary
contained in this Agreement, the Executive's employment may be terminated prior
to the end of the Employment Term only as set forth in this Section.
2.2.1 Termination Upon Resignation or Death of Executive. The
Executive's employment shall terminate upon the resignation or death of the
Executive. In case of termination pursuant to this Section 2.2.1, the Company
shall pay to the Executive (or, in case of his death, to his estate or his
beneficiary designated in writing), the base salary earned by the Executive
pursuant to Section 3, prorated through the date of resignation or death.
2.2.2 Termination Upon Disability of Executive. The
Executive's employment shall terminate by reason of the disability of the
Executive. For this purpose, "disability" shall mean the Executive's inability,
by reason of accident, illness or other physical or mental disability
(determined in good faith by the Board of Directors with the advice of a
qualified and independent physician), to perform satisfactorily the duties
required by his employment hereunder for any consecutive period of 120 calendar
days. In case of termination pursuant to this Section 2.2.2, the Executive shall
continue to receive his base salary prorated through the time of such
termination, less any amount the Executive receives during such period from any
Company-sponsored or Company-paid source of insurance, disability compensation
or government program.
2.2.3 Termination Upon Mutual Consent. The Executive's
employment may be terminated by the mutual consent of the Company and the
Executive on such terms as they may agree.
2.2.4 Termination For Cause. The Executive's employment shall
terminate immediately on notice to the Executive upon a good faith finding of
the Board of Directors that the Executive has (i) willfully or repeatedly failed
in any material respect to perform his duties in accordance with the provisions
of this Agreement following 30 days' prior written notice to the Executive and
failure of the Executive to cure such deficiency, (ii) committed a breach of any
provision of Section 4 hereof, (iii) misappropriated assets or perpetrated fraud
against the Company, (iv) been convicted of a crime which constitutes a felony,
or (v) been engaged in the illegal use of controlled or habit forming
substances. The preceding clauses (i)-(v) shall constitute "Cause" for
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termination of the Executive hereunder. In the event of termination for Cause
pursuant to this Section 2.2.4, the Company shall pay the Executive his base
salary prorated through the date of termination.
Notwithstanding any other provision of this Agreement, the
Executive shall not be terminated for Cause unless and until the Executive has
had an opportunity to appear before the Board of Directors to hear and respond
to the allegations of Cause for his termination.
2.2.5 Termination by Company Without Cause. The Company may
terminate the Executive's employment at any time and for any reason, without
Cause, upon written notice to the Executive.
In the event of termination pursuant to this Section 2.2.5,
the Company shall pay or provide to the Executive the following termination
benefits: (i) an amount equal to the product of (A) the sum of the Executive's
annual base salary as of the termination date plus $50,000, multiplied by (B) a
fraction, the numerator of which shall be the number of months remaining in the
Employment Term ("Remaining Months"), and the denominator of which shall be 12,
payable over the Remaining Months, in equal regular monthly installments, less
income taxes and other applicable withholdings, and (ii) the Executive's Fringe
Benefits (as defined below) for the Remaining Months.
The obligation of the Company to provide "Fringe Benefits"
following any termination that is or is deemed to be without Cause shall mean
that the Executive's participation (including dependent coverage) in the life
and health insurance plans of the Company in effect immediately prior to the
termination shall be continued, or substantially equivalent benefits provided,
by the Company, at a cost to the Executive no greater than his cost at the date
of such termination, for the Remaining Months or such shorter period as may be
required by this Agreement. Notwithstanding the foregoing, if the Company shall
be unable to provide for the continuation of an insurance benefit (such as life
insurance) because such benefit was provided pursuant to an insurance policy
that does not provide for the extension of such insurance benefit following
termination of the employment of the Executive, then the Executive may purchase
insurance providing such insurance benefit and, whether or not the Executive so
elects to purchase insurance, the Company's only obligation with respect to such
insurance benefit shall be to reimburse the Executive for his premium costs, up
to a maximum aggregate amount for all policies of insurance purchased by the
Executive pursuant to this sentence of $12,000 per annum, prorated for partial
years. If the Company is obligated pursuant to the so-called "COBRA" law to
offer the Executive the opportunity for a temporary extension of health coverage
("continuation coverage"), then the Executive shall elect continuation coverage,
and the premium cost of such coverage shall be borne by the Company and the
Executive as provided in the first sentence of this paragraph. Continuation
coverage provided pursuant to COBRA shall terminate in accordance with COBRA. To
the extent that any benefit required to be provided to the Executive by the
Company by reason of an actual or deemed termination for Cause shall be provided
to the Executive by any successor employer, the Company's obligation to provide
that benefit to the Executive shall be
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correspondingly offset or shall cease, as the case may be. In no event shall the
Company have any obligation to provide Fringe Benefits after the expiration of
the Remaining Months or such shorter period as may be required by this
Agreement. The Executive shall not be entitled to any expense allowance,
automobile allowance or relocation allowance following the termination of his
employment for any reason.
2.2.6 Termination By Executive for Good Reason. The
Executive may terminate his employment at any time for Good Reason (as
defined below) upon written notice to the Company.
In the event the Executive terminates his employment hereunder
for Good Reason (defined below), then such termination shall be treated as a
termination by the Company without Cause pursuant to Section 2.2.5.
For purposes of this Agreement, "Good Reason" shall mean any
of the following occurring without the specific prior written consent of the
Executive: (i) requiring the Executive to be permanently based more than 50
miles from his present office location (excluding business-related travel to an
extent reasonably consistent with past practice); (ii) assignment to the
Executive of duties materially inconsistent with his position as President of
the Company; or (iii) any material breach by the Company of its obligations
hereunder, if such breach is not cured following 30 days' written notice from
the Executive.
2.2.7 Termination By Executive without Good Reason. The
Executive may terminate his employment at any time without Good Reason upon 30
days' written notice to the Company.
In the event the Executive terminates his employment hereunder
without Good Reason, then the rights of the Executive to receive future
compensation pursuant to Section 3 hereof, and all other rights of the Executive
hereunder, will cease as of the date of such termination except as may be
required by law.
2.2.8 Termination in Connection with Change of Control. If the
employment of the Executive terminates for any reason, including termination by
the Executive, within 30 days following the occurrence of a "Change of Control"
(as defined in this Section 2.2.8), then the Company shall pay or provide to the
Executive the following termination benefits: (i) an amount equal to the product
of (A) the sum of the Executive's annual base salary as of the termination date
plus $50,000, multiplied by (B) a fraction, the numerator of which shall be the
lesser of 24 or the number of Remaining Months, and the denominator of which
shall be 12, payable over the lesser of 24 months or the number of Remaining
Months, in equal regular monthly installments, less income taxes and other
applicable withholdings, and (ii) the Executive's Fringe Benefits (as defined
above) for the lesser of 24 months or the number of Remaining Months. A "Change
of Control" shall mean a change in control of the Company (and not any person or
entity that hereafter becomes a successor to all or substantially all of the
business or assets of the Company by reason of a Change of Control) and shall be
deemed to have
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taken place if: (i) a third person, including a "group" as defined in Section
13(d)(3) of the Securities Exchange Act of 1934, becomes the beneficial owner of
shares of the capital stock of the Company having more than 50% of the total
number of votes that may be cast for the election of directors of the Company,
(ii) the sale or other disposition (excluding mortgage or pledge) of all or
substantially all of the assets of the Company, or (iii) the merger or other
business combination of the Company with or into another corporation or entity
pursuant to which the Company will not survive or will survive only as a
subsidiary of another corporation or entity, in either case with the
stockholders of the Company prior to the merger or other business combination
holding less than 50% of the voting shares of the merged or combined companies
or entities after such merger or other business combination. Notwithstanding the
foregoing, the following shall not be deemed to be a Change of Control for
purposes hereof: (i) the transactions contemplated by the Merger Agreement; (ii)
any transaction in which EITHER (x) the Executive, any "Stockholder" as defined
in the Merger Agreement, or any affiliate of any such Stockholder, is or
becomes, either alone or as a member of a "group" as defined in this Section, OR
(y) the Stockholders, together with their affiliates and considered in the
aggregate as a single entity, are or become, the beneficial owner or owners of
shares of the capital stock of the Company having more than 50% of the total
number of votes that may be cast for the election of directors of the Company;
or (iii) any transaction described in SEC Rule 13e-3(a)(3)(i) in which the
Executive participates as an "affiliate" of the Company within the meaning of
that Rule, without regard to whether the test in Rule 13e-3(a)(3)(ii) would be
satisfied in the transaction. The rights and obligations created by this
Agreement with respect to a Change of Control shall apply only with respect to
the first Change of Control after the date of execution of this Agreement, and
not with respect to any subsequent transaction.
2.2.9 No Other Termination Benefits. The Executive understands
and agrees that the termination payments and benefits described in Section 2.2
constitute all of the payments and benefits to which he (or his estate or
beneficiary) will be or become entitled to receive in case of termination of his
employment, and that such payments and benefits are in lieu of any and all other
payments and benefits of every kind or description to which he may be entitled,
including, without limitation, the right to receive a bonus payment or any
portion thereof. Any accrued but unpaid vacation compensation shall be payable
upon termination of employment.
2.2.10 No Duty to Mitigate; Termination of Benefits. The
Executive shall not be required to mitigate the amount of any compensation
payable to him pursuant to Section 2 hereof, whether by seeking other employment
or otherwise, nor shall any compensation earned by the Executive during the
period of continuance of any payments under Section 2 hereof reduce the amount
of compensation payable under Section 2.
3. COMPENSATION. During the Employment Term, the Company shall pay, in
full payment for all of the Executive's services rendered hereunder, the
following compensation:
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3.1 BASE SALARY. The Company shall pay the Executive an annual base
salary, less income taxes and other applicable withholdings, of $250,000 in
accordance with the Company's standard payroll installments. The Board of
Directors will review the annual base salary amount as soon as practicable after
the end of each fiscal year of Company to consider whether or not it should be
increased. Such determination shall be in the sole discretion of the Board of
Directors using such criteria as they deem relevant, including, but not limited
to, the performance of the Company and the Executive.
3.2 BONUSES.
3.2.1 Bonuses for Achievement of Goals. While the Executive is
employed by the Company, the Executive will be eligible to receive the bonuses
described in this Section 3.2.1. The incentive goals set forth in this Section
shall be based upon or derived from the Company's audited consolidated financial
statements prepared in accordance with generally accepted accounting principles
as reported on by the Company's independent accountants. With respect to the
Company's fiscal years ended October 2000, 2001, 2002, 2003, 2004 and 2005, if
the Company has actual annual earnings before interest, taxes, depreciation and
amortization ("EBITDA") which, expressed as a percentage of target annual EBITDA
approved in the budget for that fiscal year by the Board of Directors, are at
least 90% of such target annual EBITDA, then there shall be a bonus as set forth
in the following table. Bonuses in fiscal year 2000 and 2005 shall be pro-rated
for the portion of the fiscal year that includes the Employment Term. Bonuses
shall be non-cumulative.
ACTUAL EBITDA DIVIDED BY TARGET EBITDA BONUS
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less than 90% of target - $ -0-
at least 90% but less than 91% of target - 25,000
at least 91% but less than 92% of target - 27,500
at least 92% but less than 93% of target - 30,000
at least 93% but less than 94% of target - 32,500
at least 94% but less than 95% of target - 35,000
at least 95% but less than 96% of target - 37,500
at least 96% but less than 97% of target - 40,000
at least 97% but less than 98% of target - 42,500
at least 98% but less than 99% of target - 45,000
at least 99% but less than 100% of target - 47,500
at least 100% but less than 102% of target - 50,000
at least 102% but less than 104% of target - 52,500
at least 104% but less than 106% of target - 55,000
at least 106% but less than 108% of target - 57,500
at least 108% but less than 110% of target - 60,000
at least 110% but less than 112% of target - 62,500
at least 112% but less than 114% of target - 65,000
at least 114% but less than 116% of target - 67,500
at least 116% but less than 118% of target - 70,000
at least 118% but less than 120% of target - 72,500
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at least 120% of target or greater - 75,000
3.2.2 Guaranteed Bonus. The Executive shall be entitled to a
guaranteed bonus each year during the Employment Term (pro-rated for partial
years) in an amount equal to the excess of $50,000 over the actual costs
reimbursed to the Executive by the Company pursuant to Section 3.7.
3.2.3 Time of Bonus Payments. Each bonus required to be paid
to the Executive under this Section 3.2 shall be paid as soon as practicable
after the filing with the Securities and Exchange Commission of the Company's
Annual Report on Form 10-K or 10-KSB or successor form, as the case may be.
3.3 STOCK OPTIONS. The Executive shall be eligible to receive
stock options from time to time, as determined by the Compensation Committee of
the Board of the Directors of the Company.
3.4 VACATION. The Executive shall be entitled to four (4) weeks of
vacation in each 12-month period during the Employment Term, with carryover from
year to year of unused vacation time. No more than two (2) weeks may be taken
consecutively.
3.5 EXECUTIVE BENEFIT PLANS. The Executive shall be entitled to
participate in all plans or programs sponsored by the Company for employees in
general, including without limitation, participation in any group health,
medical reimbursement, or life insurance plans.
3.6 EXPENSE ALLOWANCE. The Company shall reimburse the Executive for
all reasonable and necessary expenses incurred by him from time to time in the
performance of his duties hereunder, against receipts therefor in accordance
with the then effective policies and requirements of the Company.
3.7 DISABILITY INSURANCE; AUTOMOBILE ALLOWANCE. The Company shall have
no obligation to provide disability insurance to the Executive. The Company
agrees to provide an allowance of up to $50,000 per year, in the aggregate, to
reimburse the Executive for (i) the actual cost of premiums incurred by the
Executive for disability insurance obtained by the Executive and (ii) the actual
cost of leasing and operating an automobile for use by the Executive during the
Executive's employment with the Company. The Executive may determine in his
reasonable judgment how to allocate the allowance between disability insurance
premiums and automobile leasing expense.
3.8 ELECTION AS A DIRECTOR AND MEMBER OF THE EXECUTIVE COMMITTEE.
Subject only to the fiduciary duties of its directors, the Company will use its
best efforts to nominate and cause the Executive to be elected as a member of
the Board of Directors and a member of the Executive Committee, if any, of the
Board of Directors during the Employment Term. If the Executive's employment is
terminated for any reason, then such termination shall not in any way affect the
Executive's right to be elected to the Board of Directors as set forth in the
preceding sentence so long as the Executive and the
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Stockholders (as defined in the Merger Agreement) and/or their respective
affiliates continue to hold in the aggregate at least 40% of the shares of
outstanding capital stock of the Company.
4. PROTECTION OF CONFIDENTIAL INFORMATION; NON-COMPETE
4.1 ACKNOWLEDGEMENTS. The Executive acknowledges that:
(a) The Executive has obtained and, during his employment by the
Company, will obtain secret and confidential information concerning the business
of the Company and its affiliates, including, without limitation, customer lists
and sources of supply, their needs and requirements, the nature and extent of
contracts with them, and related cost, price and sales information.
(b) The Company and its affiliates will suffer substantial and
irreparable damage which will be difficult to compute if, during the period of
his employment with the Company or thereafter, the Executive should enter a
competitive business or should divulge secret and confidential information
relating to the business of the Company and its affiliates heretofore or
hereafter acquired by him in the course of his employment with the Company.
(c) The provisions of this Agreement are reasonable and necessary
for the protection of the business of the Company and its affiliates.
4.2 CONFIDENTIALITY. The Executive agrees that he will not at any time,
either during the Employment Term or thereafter, divulge to any person, firm or
corporation any information obtained or learned by him during the course of his
employment with the Company, with regard to the operational, financial, business
or other affairs of the Company and its affiliates, and their respective
officers and directors, including, without limitation, trade secrets, customer
lists, sources of supply, pricing policies, operational methods or technical
processes, except (i) in the course of performing his authorized duties
hereunder, (ii) with the Company's express written consent; (iii) to the extent
that any such information is lawfully in the public domain other than as a
result of the Executive's breach of any of his obligations hereunder; or (iv)
where required to be disclosed by court order, subpoena or other government
process. In the event that the Executive shall be required to make any
disclosure pursuant to the provisions of clause (iv) of the preceding sentence,
the Executive promptly, but in no event more than 48 hours after learning of
such subpoena, court order, or other government process, shall notify the
Company, by personal delivery or by fax, confirmed by mail, to the Company and,
if the Company so elects and at the Company's expense, the Executive shall: (a)
take all reasonably necessary steps requested by the Company to defend against
the enforcement of such subpoena, court order or other government process, and
(b) permit the Company to intervene and participate with counsel of its choice
in any proceeding relating to the enforcement thereof.
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4.3 RETURN OF PROPERTY. Upon termination of his employment with the
Company, or at any time the Company may so request, the Executive will promptly
deliver to Company all memoranda, notes, records, reports, manuals, drawings,
blueprints and other documents (and all copies thereof) relating to the business
of the Company and its affiliates and all property associated therewith, which
he may then possess or have under this control.
4.4 NON-COMPETITION. During the Employment Term and for a period equal
to the time during which Executive receives severance payments for benefits
pursuant to Section 2 of this Agreement or for a period of 12 months in the
event the Executive is terminated without entitlement to severance benefits
herein, the Executive shall not, without the prior written permission of the
Company, in the United States, its territories and possessions, directly or
indirectly, (i) enter into the employ of or render any services to any person,
firm or corporation engaged in any Competitive Business (as defined below); (ii)
engage in any Competitive Business for his own account; (iii) become associated
with or interested in any Competitive Business as an individual, partner,
shareholder, creditor, director, officer, principal, agent, employee, trustee,
consultant, advisor or in any other relationship or capacity; (iv) employ or
retain, or have or cause any other person or entity to employ or retain, any
person who was employed or retained by the Company or its affiliates while the
Executive was employed by the Company; or (v) solicit, interfere with, or
endeavor to entice away from the Company or its affiliates any of their
customers or sources of supply. However, nothing in this Agreement shall
preclude the Executive from investing his personal assets in the securities of
any Competitive Business if such securities are traded on a national stock
exchange or in the over-the-counter market and if such investment does not
result in his beneficially owning, at any time, more than 4.9% of the
publicly-traded equity securities of such competitor. "Competitive Business"
shall mean any business or enterprise which (a) designs, sells, manufactures,
markets and/or distributes spring or purified water products or still spring or
purified water beverages, or (b) engages in any other business in which Company
or its affiliates is involved at any time during the 12-month period immediately
prior to the termination of the Executive's employment.
4.5 ENFORCEMENT. If the Executive commits a breach, or threatens to
commit a breach, of any of the provisions of Section 4, the Company shall have
the right and remedy to have the provisions of this Agreement specifically
enforced by any court having jurisdiction over the matter, it being acknowledged
and agreed by the Executive that the services being rendered hereunder to the
Company are of a special, unique and extraordinary character and that any such
breach or threatened breach will cause irreparable injury to the Company and
that money damages will not provide an adequate remedy to the Company. Such
right and remedy shall be in addition to, and not in lieu of, any other rights
and remedies available to the Company under law or equity.-
4.6 BLUE PENCILING. If any provision of Section 4 is held to be
unenforceable because of the scope, duration or area of its applicability, the
tribunal making such determination shall have the power to modify such scope,
duration or area, or all of them, and such provision or provisions shall then be
applicable in such modified form.
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5. REPRESENTATIONS OF EXECUTIVE. The Executive represents and warrants to
the Company that the Executive is not a party to or bound by any agreement,
understanding or restriction that would or may be breached by the Executive's
execution and full performance of this Agreement. The Executive expressly
undertakes and agrees that none of his acts or duties hereunder that will
violate any obligations he may have to any prior employer (or will impose on the
Company any liability to any prior employer) and that he has complied with all
requirements of notice applicable to the termination of any prior employment
before he commenced his employment with the Company. The Executive further
represents and warrants that he has delivered to the Company complete copies of
all employment agreements, understanding and restrictions to which he has been
subject at any time during the last five years.
6. CONSTRUCTION OF THIS AGREEMENT.
6.1 CHOICE OF LAW. This Agreement is to be construed pursuant to
the laws of the State of Delaware, without regard to the laws affecting choice
of law.
6.2 INVALID AGREEMENT PROVISIONS. Should any provision of this
Agreement become legally unenforceable, no other provision of this Agreement
shall be affected, and this Agreement shall continue as if the Agreement had
been executed absent the unenforceable provision.
6.3 NO OTHER AGREEMENTS. This Agreement represents the full agreement
between the Company and the Executive with respect to the subject matter hereof
and the Company and the Executive have made no agreements, representations or
warranties relating to the subject matter of this Agreement that are not set
forth herein. This Agreement supersedes any and all other agreements, oral or
written, that may define the employment relationship between the Executive and
the Company. When effective, this Agreement also supersedes any and all
employment agreements between the Executive and Crystal Rock, which is a
signatory to this Agreement solely for the purpose of terminating, as of the
Effective Date, and without liability to any party thereto, any and all such
employment agreements between Crystal Rock and the Executive. Nothing in this
Agreement confers any rights or remedies on any person or entity or than the
parties hereto.
6.4 NOTICES. All notices provided for in this Agreement shall be in
writing and shall be deemed to be given when delivered personally to the party
to receive the same, when transmitted by electronic means or when mailed first
class, postage prepaid by certified mail, return receipt requested, addressed to
the party to receive the same at the applicable addresses set forth below or
such other address as the party to receive the same shall have specified by
written notice give in the manner provided for in this Section. All notices
shall be deemed to have been given as of the date of personal delivery,
transmittal or mailing thereof.
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If to the Executive Xx. Xxxxx X. Xxxxx, c/o Xxxxxxx Rock Spring Water
Company, 0000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, with a copy to:
Xxxxx Xxxxxx, Esquire, Xxxxxxx Xxxx LLP, 000 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000.
If to the Company: Vermont Pure Holdings, Ltd., Xxxxx 00, Xxxxxxxxx
Xxxx, Xxxxxxxx Xxxxxx, Xxxxxxx 00000, Attention: Chairman of the Board, with a
copy to: Xxxx Xxxxxx, Esquire, Xxxxx, Xxxx & Xxxxx LLP, Xxx Xxxx Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000.
6.5 ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of the Company's successors and assigns.
6.6 DISPUTES AND CONTROVERSIES. The parties hereto agree that in case
of any dispute, controversy or claim arising out of or relating to this
Agreement, other than pursuant to Sections 4 and 6 hereof, the dispute,
controversy or claim shall be determined by arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association. The place
of the arbitration shall be Boston, Massachusetts. Any arbitration award shall
be based upon and accompanied by a written opinion containing findings of fact
and conclusions of law. The determination of the arbitrator(s) shall be
conclusive and binding on the parties hereto, and any judgment upon the award
rendered by the arbitrator(s) may be entered in any court having jurisdiction.
6.7 COUNTERPARTS. This Agreement may be executed by the parties in
separate counterparts, each of which when so executed and delivered will be an
original, but all of which together will constitute one and the same agreement.
In pleading or proving this Agreement, it will not be necessary to produce or
account for more than one such counterpart.
6.8 WAIVERS; AMENDMENTS. No waiver of any breach or default hereunder
will be valid unless in a writing signed by the waiving party. No failure or
other delay by any party exercising any right, power, or privilege hereunder
will be or operate as a waiver thereof, nor will any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power, or privilege. No amendment or modification of this Agreement
will be valid or binding unless in a writing signed by both the Executive, the
Company and the Operating Company.
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IN WITNESS WHEREOF, the parties have executed this Agreement under seal
as of the date first written above.
COMPANY: VP MERGER PARENT, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: CEO and President
OPERATING COMPANY: VERMONT PURE SPRINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: CEO and President
EXECUTIVE: /s/ Xxxxx X. Xxxxx
-----------------------------------
XXXXX X. XXXXX
XXXXXXX ROCK: CRYSTAL ROCK SPRING WATER COMPANY
(solely for purposes of Section 6.3
hereof)
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Co-President
