EMPLOYMENT AGREEMENT
This
Employment Agreement (the “Agreement”) is entered into as of March 19, 2008, by
and between Purple Beverage Company, Inc., a Nevada corporation (the “Company”),
and Xxxxxxx X. Xxxxxxx (“Employee”). The parties hereto agree as
follows:
1. Employment
and Duties.
The
Company shall employ Employee in the position of Executive Vice President and
Chief Financial Officer (or such other position of similar rank as may be
assigned to him by the Company’s Board of Directors). Employee shall report
directly to the Chief Executive Officer and shall perform all duties and
obligations typically performed by a person in such position, including, without
limitation, those certain duties and obligations stated on Exhibit A hereto
(or
such other duties assigned to Employee from time to time by the Chief Executive
Officer). Employee shall devote his full business time, attention, and energies
exclusively to the business and interests of the Company and to the performance
of his duties and obligations under this Agreement.
2. Term
of Agreement.
Subject
to the provisions of Section 4, Employee and the Company retain the right to
terminate this Agreement at any time, for any reason or no reason, and with
or
without Cause (as defined in Section 4.1.1), and with or without notice. Nothing
in this Agreement shall be deemed to alter the at-will nature of Employee’s
employment with the Company, and the at-will nature of Employee’s employment
shall not otherwise be modified except in a writing in accordance with Section
9
hereof. Notwithstanding the foregoing, the provisions of Sections 5, 6 and
10 of
the Agreement shall survive, and continue in full force and effect, after any
termination or expiration of this Agreement, irrespective of the reason for
the
termination or any claim that the termination was wrongful or
illegal.
3. Compensation
and Other Benefits.
The
Company shall provide the following compensation and other benefits to Employee
in consideration of Employee’s performance of all of his obligations under this
Agreement:
3.1 Base
Salary.
Subject
to the provisions of Section 4, the Company shall pay to Employee a pro-rated
annual base salary (the “Base Salary”) of no less than $250,000, $275,000 and
$300,000 for the periods ending September 30, 2008, 2009, and 2010,
respectively, less applicable withholdings. The Base Salary may be in excess
of
the above amounts at the sole discretion of the Board of Directors. The Base
Salary shall be payable in accordance with the Company’s ordinary payroll
practices in effect during the period of Employee’s employment with the
Company.
3.2 Incentive
Compensation.
For the
fiscal year ending September 30, 2008 of Employee’s employment with the Company,
Employee shall be guaranteed to earn a bonus (“Incentive Compensation”) of no
less than $75,000 or such greater amount as determined in the sole discretion
of
the Board of Directors, pro-rated in accordance with the Employee’s actual
duration of employment during such fiscal year. Additionally, for the fiscal
year ending September 30, 2009, of Employee’s employment with the Company,
Employee shall be guaranteed to earn Incentive Compensation of no less than
$100,000 or such greater amount as determined in the sole discretion of the
Board of Directors. Incentive Compensation shall be paid to Employee on the
first applicable payroll date subsequent to the fiscal year (September
30th)
the
Incentive Compensation was earned. Incentive Compensation will not be considered
earned for a particular fiscal year unless Employee is employed with the Company
on October 1 immediately following the close of that fiscal year ending
September 30, except as specifically provided pursuant to Section 4.1.2.
Furthermore, Employee acknowledges and agrees that if his employment with the
Company is terminated pursuant to Sections 4.1.1, 4.1.2, 4.2 or 4.3 below before
the Incentive Compensation is considered earned, Employee shall not be eligible
for payment of Incentive Compensation for the fiscal year in which the
termination is effective. Any provision to the contrary notwithstanding, the
Company will make all payments under this arrangement not later than 2 months
after the end of the fiscal year in which the payments are no longer subject
to
a substantial risk of forfeiture; provided that if calculation of the payment
amount is not administratively practicable due to events beyond the employee’s
control or if the Company has insufficient funds so that such payment would
jeopardize the solvency of the Company, the payment may be delayed until the
first calendar year in which the payment is administratively practicable and
the
funds of the Company are sufficient.
3.3 Stock
Option Plan.
Employee shall be eligible to participate in any stock option plan that, after
the date subsequent to the date of this Agreement, may be adopted by the Company
and approved by the Company’s Board of Directors in its sole and absolute
discretion (a “Stock Option Plan”). As of the effective date of this Agreement,
Employee shall be granted (outside of any current stock option plan of the
Company), subject to compliance with all state and federal securities laws,
nonqualified stock options to purchase 1,663,826 shares of common stock pursuant
to a vesting schedule. The form
of
grant and vesting schedule is
attached hereto as Exhibit B. Future grants will be authorized as determined
by
the Company’s Board of Directors in its sole and absolute
discretion.
3.4 Fringe
Benefits.
As
additional compensation under this Agreement, Employee shall be entitled to
receive the following benefits (the “Fringe Benefits”):
3.4.1 Employee
Benefit Plans.
The
Company shall allow Employee to participate in such group medical, health,
pension, welfare, and insurance plans (the “Employee Benefit Plans”) maintained
by the Company from time to time for the general benefit of its employees of
similar rank, as such Employee Benefit Plans may be modified from time to time
in the Company’s sole and absolute discretion. The Company shall provide group
medical and dental insurance for Employee and his family at the Company’s
expense.
3.4.2 Other
Benefits.
The
Company shall provide Employee with an auto allowance in the amount of $1,000
per month. The Company shall provide Employee with all other benefits and
perquisites as are made generally available to the Company’s employees of
similar rank under the Company’s Employee Handbook, as such Employee Handbook
may be modified from time to time in the Company’s sole and absolute
discretion.
3.4.3 Reimbursement
of Business Expenses.
The
Company shall reimburse Employee for all reasonable travel, entertainment,
professional license fees, professional organization dues, continuing education
costs and other expenses incurred by Employee in connection with the performance
of his duties under this Agreement, upon submission by Employee to Company
of
reasonable documentation pertaining to such expenses. The Employee agrees to
provide to the Company such information as may be reasonably necessary to
substantiate any reimbursement or payment of the fees, costs and expenses
described in this subsection at such time as is consistent with Company policy
but in no event later than 30 days following the close of the calendar year
in
which such fee, cost or expense is incurred. Upon receipt of such
substantiation, the Company shall pay or reimburse the fees, costs and expenses
described in this subsection promptly in accordance with Company policy but
in
no event later than 2 ½ months following the close of the calendar year in which
such fee, cost or expense was incurred by the Employee. The amount of expenses
eligible for reimbursement in a calendar year will not affect the amount
eligible for reimbursement in another calendar year.
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3.4.4 Vacation.
In no
event shall Employee accrue vacation time at a rate in excess of four weeks
per
year; provided,
that
Employee may not accrue more than six weeks of vacation. Employee will cease
accruing vacation once Employee reaches such six-week maximum accrual and will
commence accruing vacation again once Employee has taken sufficient vacation
to
fall below such six-week level.
3.5 Deferred
Compensation.
Any
deferred compensation (within the meaning of Section 409A of the Internal
Revenue Code (“Section 409A”)) payable under this Agreement on account of
Employee’s separation from service shall not commence prior to six months
following such separation if Employee is a specified employee (within the
meaning of Section 409A); provided,
however,
that,
in determining whether Employee is a specified employee, any compensation
realized on account of the exercise of a stock option or a disqualifying
disposition of stock acquired through the exercise of an incentive stock option
shall be disregarded.
3.6 Sign-on
Bonus.
Sign-on
Bonus, in the amount of $25,000, shall be paid to Employee on the first
applicable payroll date subsequent the date of this Agreement.
4. Termination
or Expiration of Agreement.
4.1 Termination
at Company’s Election.
The
Company, with the approval of the Board, may terminate Employee’s employment at
any time, for any reason or no reason, with or without Cause (as defined in
Section 4.1.1), and with or without notice, subject to the provisions of
Sections 4.1.1 and 4.1.2. “Terminate,” as used in this Agreement to determine
the date of any payment, shall mean the date of the Employee’s “separation from
service,” as defined by Section 409A.
4.1.1 Termination
for Cause.
If
Employee’s employment is terminated for Cause, Employee shall be entitled to
receive only the following: (i) payment of Employee’s Base Salary through
and including the date of termination; (ii) payment of any earned but unpaid
Incentive Compensation for the prior fiscal year pursuant to the terms of
Section 3.2; and (iii) reimbursement of business expenses incurred prior to
the
date of termination in accordance with Section 3.4.3. Except as expressly set
forth in this Section 4.1.1, Employee shall not be entitled to receive any
Base
Salary, Incentive Compensation or Fringe Benefits in the event Employee’s
employment is terminated for Cause, except that Employee may continue to
participate in the Employee Benefit Plans to the extent permitted by and in
accordance with the terms thereof or as otherwise required by law. As used
in
this Agreement, “Cause” shall be defined as any of the following that has a
material adverse effect on the Company: (a) a material breach by Employee of
any
term of this Agreement; (b) an intentional refusal or failure to follow the
lawful and reasonable instructions of the Chief Executive Officer; (c) a willful
or habitual neglect of duties; (d) misconduct on the part of Employee that
is
materially injurious to the Company; (e) any act of fraud or embezzlement in
respect of the Company or any of their respective funds, properties or assets;
(f) conviction of the Employee of a felony or of a plea of guilty or nolo
contendre involving a felony, whether or not involving the Company; (g) willful
misconduct or gross negligence by the participant in connection with the
performance of the Employee’s duties to the Company or willful violation of
Company policies; (h) intentional dishonesty by the Employee in the performance
of the Employee’s duties to the Company; (i) any fraud, theft, misappropriation
of or embezzlement by the Employee in connection with the performance of the
Employee’s duties to the Company; (j) engagement by the Employee in the use of
illegal substances or alcohol, which use has impaired the Employee’s ability, as
determined by the Board of Directors of the Company, on an ongoing basis, to
perform the Employee’s duties to the Company; or (k) breach by the Employee of
any terms and conditions set forth in any non-competition, non-solicitation
and/or non-disclosure agreement executed by the Employee. A determination of
Cause shall be made by the Board of Directors of the Company. With regard to
clauses (a) through (c) and (k), Employee may cure such breach within thirty
(30) days of Employee’s receipt of written notice from the Company; provided,
however,
that
such cure period shall not be applicable if, in the case of clause (a) or (k),
the Board of Directors, in its sole discretion, has determined that such breach
is not capable of being fully cured; provided,
further,
that,
upon the second occurrence of a breach of under clauses (a) through (c) or
(k),
no such cure period need be extended to Employee.
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4.1.2 Termination
Without Cause.
If
Employee is terminated by the Company without Cause, Employee shall receive:
(i)
payment of Employee’s Base Salary through and including the date of termination;
(ii) payment of that amount equal to six (6) months of the Employee’s
then-current Base Salary; (iii) payment of that amount equal to six (6) months
of the Employee’s then-guaranteed Incentive Compensation pursuant to Section 3.2
or, for those fiscal years ending after September 30, 2009, that amount equal
to
six (6) months of the Incentive Compensation paid in the previous fiscal year;
(iv) reimbursement of business expenses incurred prior to the date of
termination in accordance with Section 3.4.4; and (v) immediate vesting of
all
non-vested stock options previously granted to Employee.
4.2 Termination
upon Death or Permanent Disability.
This
Agreement will terminate automatically on Employee’s death or if Employee
becomes Permanently Disabled (as defined below). In the event of such
termination, Employee, or his beneficiary or estate, shall be entitled to
receive such amounts of the Base Salary, Incentive Compensation and Fringe
Benefits as would have been payable to Employee under a termination without
Cause under Section 4.1.2 as of the date of death or the date as of which the
Company has determined in its sole discretion that Employee has become
Permanently Disabled. As used in this Agreement, “Permanently Disabled” shall
mean the incapacity of Employee due to illness, accident, or any other reason
to
perform his duties for a period of 90 calendar days, whether or not consecutive,
during any 12-month period, all as determined by the Company in its sole
discretion. All Company determinations as to the date and extent of incapacity
of Employee shall be made by the Company’s Board of Directors, upon the basis of
such evidence, including independent medical reports and data, as the Board
of
Directors in its sole discretion deems necessary and desirable. All such
determinations of the Board of Directors shall be final.
4.3 Termination
at Employee’s Election.
Employee
may resign from employment with the Company for any reason by providing written
notice to the Company prior to the date selected for resignation. If Employee
resigns from employment, Employee shall be entitled to receive only the
following: (i) payment of Employee’s Base Salary through and including the date
of resignation; (ii) payment
of any earned but unpaid Incentive Compensation for the prior fiscal year
pursuant to the terms of Section 3.2;
and
(iii) reimbursement of business expenses incurred prior to the date of
resignation in accordance with Section 3.4.3. Except as expressly set forth
in
this Section 4.3, in the event Employee resigns from employment, Employee shall
not be entitled to receive any Base Salary, Incentive Compensation, Fringe
Benefits or other items, except that Employee may continue to participate in
the
Employee Benefit Plans to the extent permitted by and in accordance with the
terms thereof or as otherwise required by law.
4.4 Exercise
of Stock Options Upon Termination.
Any
options granted to Employee hereunder or pursuant to a Stock Option Plan shall
cease vesting on the date of termination of Employee’s employment, except as
specifically noted in Section 4.1.2(v), and, to the extent vested on the date
of
termination and not previously exercised or expired, may be exercised by
Employee in accordance with the terms and conditions of the grant of options
hereunder or the terms and conditions of such Stock Option Plan, as
applicable.
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5. Assignment
of Intellectual Property.
5.1 Purpose
of Assignment. Employee
understands that: (i) the Company is engaged in a continuous program of
research, development, production, and marketing in connection with its
business; and (ii) it is critical for the Company to preserve and protect its
“Proprietary Information” (as defined in Section 5.6 below), its rights in
“Inventions” (as defined in Section 5.2 below), and in all other
intellectual property rights. Accordingly, Employee enters into the Agreement
as
a condition of employment and continued employment with the Company, whether
or
not Employee is expected to create inventions or other intellectual property
of
value for the Company.
5.2 Disclosure
of Inventions.
Employee will promptly disclose in writing and in confidence to the Company
all
inventions, improvements, designs, original works of authorship, formulas,
processes, compositions of matter, computer software programs (whether in source
code or object code), databases, mask works, innovations, ideas, concepts,
discoveries, techniques, technical data, know-how, formulas, algorithms, flow
charts, source code, object code, and trade secrets that Employee makes or
conceives or first reduces to practice or creates, either alone or jointly
with
others, during the period of Employee’s employment, whether or not in the course
of employment, and whether or not patentable, copyrightable, or protectable
as a
trade secret (the “Inventions”).
5.3 Assignment
of Inventions; Work Made for Hire.
Employee acknowledges and agrees that any copyrightable works prepared by
Employee within the scope of employment are “works made for hire” under the
Copyright Act and that the Company will be considered the author and owner
of
such copyrightable works. Employee agrees that all Inventions that (i) are
developed using equipment, supplies, facilities or trade secrets of the Company,
(ii) result from work performed by Employee for the Company, or
(iii) relate to the Company’s business or actual or demonstrably
anticipated research and development (the “Assigned Inventions”) will be the
sole and exclusive property of the Company. Attached hereto as Exhibit C is
a
list describing all inventions, original works of authorship, developments,
and
trade secrets that were made by Employee prior to the date of this Agreement,
that belong to Employee, and that are not assigned to the Company (“Prior
Inventions”). If no such list is attached, Employee agrees that it is because no
such Prior Inventions exist. Employee
acknowledges and agrees that if Employee uses any of Employee’s Prior Inventions
in the scope of employment, or includes them in any product or service of the
Company, Employee hereby grants to the Company a perpetual, irrevocable,
nonexclusive, world-wide, royalty-free license to use, disclose, make, offer
for
sale, sell, import, copy, distribute, perform,
display, modify and create derivative works based on such Prior Inventions
and
to sublicense third parties with the same rights.
5.4 Assignment
of Other Rights.
To the
extent that the Company does not own all right, title, and interest in, to,
and
under the Inventions, Employee agrees to assign, and does hereby irrevocably
transfer and assign, to the Company: (i) all patents, patent applications,
copyrights, mask works, trade secrets and other intellectual property rights
anywhere in the world (both registered and unregistered) (“other intellectual
property rights” includes, but not limited to, rights in databases and in any
Assigned Inventions, along with any registrations of or applications to register
such rights); (ii) any and all “Moral Rights” (as defined below) that
Employee may have in or with respect to any Assigned Inventions; (iii) all
licensing and contract rights in, to, and under any of the above; (iv) the
right to all income, royalties, fees, damages, and payments payable in, to,
and
under any of the above; (v) the right to xxx for present, past, and future
infringement or misappropriation, or to otherwise enforce any rights and file
any causes of action, in law and/or equity in, to, and under any of the above;
and (vi) any other legal protections or rights throughout the world in, to,
and under any of the above. Employee also hereby forever waives and agrees
never
to assert any and all Moral Rights that Employee may have in or with respect
to
any Assigned Inventions, even after termination of Employee’s work on behalf of
the Company. “Moral Rights” means any rights to claim authorship of or credit on
an Assigned Inventions, to object to or prevent the modification or destruction
of any Assigned Inventions or Prior Inventions licensed to Company under Section
5.3, or to withdraw from circulation or control the publication or distribution
of any Assigned Inventions or Prior Inventions licensed to Company under Section
5.3, and any similar right, existing under judicial or statutory law of any
country or subdivision thereof in the world, or under any treaty, regardless
of
whether or not such right is denominated or generally referred to as a “moral
right.”
5
To
the
extent that any and all of Employee’s right, title, and interest in, to, and
under any intellectual property related to the Company Business (as defined
in
Section 6.1) have not been assigned, transferred over, set over, conveyed,
and
delivered to the Company or its predecessor, Venture Beverage Company, Inc.,
Employee hereby irrevocably assigns, transfers over, sets over, conveys, and
delivers to the Company, its successors and assigns, all of Employee’s right,
title, and interest in, to, and under all such intellectual property, including
any and all developed by Employee while employed or otherwise connected to
Venture Beverage Company, Inc.
5.5 Assistance.
Employee agrees to assist the Company in every proper way to obtain for the
Company and enforce patents, copyrights, mask work rights, trade secret rights
and other legal protections for the Company’s Assigned Inventions in any and all
countries. Employee will execute any documents that the Company may reasonably
request for use in obtaining or enforcing such patents, copyrights, mask work
rights, trade secrets and other legal protections. Employee’s obligations under
this paragraph will continue beyond the termination of Employee’s employment
with the Company, provided that the Company will compensate Employee at a
reasonable rate after such termination for time or expenses actually spent
by
Employee at the Company’s request on such assistance. Employee appoints the
Company’s attorneys as Employee’s attorney-in-fact to execute documents on his
behalf for this purpose.
5.6 Proprietary
Information.
Employee understands that employment by the Company creates a relationship
of
confidence and trust with respect to any information of a confidential or secret
nature that may be disclosed to Employee by the Company or a third party that
relates to the business of the Company or to the business of any parent,
subsidiary, affiliate, customer or supplier of the Company or any other party
with whom the Company agrees to hold information of such party in confidence
(the “Proprietary Information”). Such Proprietary Information includes, but is
not limited to, Assigned Inventions, marketing plans, product plans, source
code, flowcharts, business strategies, financial information, forecasts,
personnel information, customer lists and other customer information, vendor
lists and other vendor information, internal work processes, and
data.
5.7 Name
and Likeness Rights.
Employee hereby authorizes the Company to use, reuse, and to grant others the
right to use and reuse, Employee’s name, photograph, likeness (including
caricature), voice, and biographical information, and any reproduction or
simulation thereof, in any form of media or technology now known or hereafter
developed (including, but not limited to, film, video and digital or other
electronic media), to the extent that materials using Employee’s name or
likeness were generated during Employee’s employment and such name or likeness
is only used for purposes related to the Company’s business, such as marketing,
advertising, credits, and presentations.
6
6.
Non-Competition
and Confidential Information.
6.1 Assistance
to Competitors.
During
Employee’s employment with the Company, Employee and Employee’s spouse and
immediate family members shall not own a material interest in (other than up
to
two percent of the voting securities of a publicly traded corporation) any
entity or individual that competes with the Company in the Company Business.
Employee and Employee’s spouse and immediate family members will not, without
the Company’s prior express written consent, engage in any other employment or
business that (i) directly competes with current or future Company Business;
(ii) uses any Company information, equipment, supplies, facilities or materials;
or (iii) otherwise conflicts with Company Business interests or causes a
potential disruption of its operations. “Company Business” shall mean the
Company’s business as it is currently conducted and any other business activity
in which the Company is engaged at any time during the period of Employee’s
employment with the Company.
In
the
event of termination for Cause of Employee’s employment with the Company, all
provisions in this Section 6.1 of the Agreement shall continue in effect for
a
term of three years from the termination date. In the event of termination,
other than for Cause, of Employee’s employment with the Company, all provisions
in this Section 6.1 of the Agreement shall continue in effect for a term of
one
year from the termination date.
6.2 Notification.
Employee hereby authorizes the Company to notify third parties, including,
without limitation, customers and actual or potential employers, of the terms
of
this Agreement and Employee’s responsibilities hereunder.
6.3 Non-Solicitation
of Employees/Consultants.
During
Employee’s employment with the Company, Employee will not directly or indirectly
solicit or otherwise take or attempt to take away employees or consultants
of
the Company for Employee’s own benefit or for the benefit of any other person or
entity.
In
the
event of termination of Employee’s employment with the Company, whether for
Cause or other than for Cause, all provisions in this Section 6.3 of the
Agreement shall continue in effect for a term of one year from the termination
date.
6.4 Non-Solicitation
of Suppliers/Customers.
During
Employee’s employment with the Company, Employee will not directly or indirectly
solicit or otherwise take away or attempt to take away customers or suppliers
of
the Company. Employee agrees that the non-public names and addresses of the
Company’s customers and suppliers, and all other confidential information
related to them, including their buying and selling habits and special needs,
created or obtained during employment by Employee, constitute trade secrets,
confidential information, and Proprietary Information of the Company.
In
the
event of termination of Employee’s employment with the Company, whether for
cause or other than for cause, all provisions in this Section 6.4 of the
Agreement shall continue in effect for a term of one year from the termination
date.
6.5 Company
Property.
Upon
termination of Employee’s employment with the Company at any time for any
reason, or upon the Company’s request at any time and for any reason, Employee
shall promptly return all such Company property to the Company, without keeping
any copy of any such Company property for himself or any other entity or
individual.
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6.6 Confidential
Information, Inventions, Non-Solicitation.
At all
times, both during Employee’s employment and after termination, Employee will
keep and hold all Proprietary Information in strict confidence and trust.
Employee will not use or disclose any Proprietary Information without the prior
written consent of the Company, except as may be necessary to perform Employee’s
duties as an employee of the Company for the benefit of the Company. Upon
termination of Employee’s employment with the Company, Employee will promptly
deliver to the Company all documents and materials of any nature pertaining
to
work with the Company and will execute the acknowledgment attached in
Exhibit D confirming Employee’s agreement to honor responsibilities
contained in this Agreement. Employee will not take or retain any documents
or
materials or copies thereof containing any Proprietary Information.
6.7 Geographic
Scope of Provisions in Section 6.
The
provisions in this Section 6 of the Agreement shall encompass the geographic
area of the entire United States, including its territories, and any other
countries or subdivisions thereof where the Company conducted business or has
taken reasonable steps to commence conducting business during the 12 months
prior to the date of termination. If, however, any of the geographic provisions
of this Agreement are determined by a court of competent jurisdiction to be
unenforceable, then the geographic scope of the unenforceable provisions in
this
Section 6 will be interpreted to extend over the largest enforceable
geographical area selectable from: the continental United States and countries
where the Company conducted significant business on the date of termination,
the
continental United States, the United States east of the Mississippi River,
the
State of Florida, and the greater metropolitan Miami and Ft. Lauderdale,
Florida, region.
6.8 Durational
Scope of Provisions in Section 6.
If any
of the time provisions of this Section 6 of the Agreement are determined by
a
court of competent jurisdiction to be unenforceable, then the unenforceable
provisions in this Section 6 will be interpreted to extend over the longest
enforceable period of time (but not greater than the particular time provision)
selectable from: three (3) years, two (2) years, one (1) year, nine (9) months,
six (6) months, and three (3) months.
7. Representation
and Warranties: No Breach of Prior Agreements.
Employee represents and warrants to the Company that Employee is under no
contractual or other restriction or obligation that is materially inconsistent
with the execution of this Agreement, the performance of his duties hereunder,
or the rights of the Company hereunder, including, without limitation, any
development, non-competition, non-disclosure or confidentiality, invention
assignment, proprietary information, confidentiality or similar
agreements previously
entered into by Employee. Employee represents that Employee will not bring
to
the Company, or use in the performance of Employee’s duties for the Company, any
documents or materials or intangibles of a former employer or third party
(except for Venture Beverage Company, Inc.) that are not generally available
to
the public or have not been legally transferred to the Company.
8. Severability.
In the
event that any provision of this Agreement should be held to be void, voidable,
unlawful, or for any reason unenforceable, the remaining provisions or portions
of this Agreement shall remain in full force and effect.
9. Amendment
and Waiver.
No
provision of this Agreement can be modified, amended, supplemented, or waived
in
any manner except by an instrument in writing signed by both Employee and the
Chief Executive Officer, and if Employee shall be the Chief Executive Officer,
than by the Chairman of the Board, and if the Employee shall be the Chairman
of
the Board, then by any other director, in each case only after such modification
shall have been approved by the Company’s Board of Directors in its sole
discretion. The waiver by either party of compliance with any provision of
this
Agreement by the other party shall not operate or be construed as a waiver
of
any other provision of this Agreement, or of any subsequent breach by such
party
of any provision of this Agreement.
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10. Applicable
Law.
This
Agreement, Employee’s employment relationship with the Company, and any and all
matters or claims arising out of or related to this Agreement or Employee’s
employment relationship with the Company shall be governed by, and construed
in
accordance with, the laws of the State of Florida, regardless of the choice
of
law provisions of Florida or
any
other jurisdiction.
11. Arbitration.
11.1 Exclusive
Remedy.
Except
as set forth in Section 11.3, arbitration shall be the sole and exclusive remedy
for any dispute, claim, or controversy of any kind or nature (a “Claim”) arising
out of, related to, or connected with this Agreement, Employee’s employment
relationship with the Company, or the termination of Employee’s employment
relationship with the Company, including any Claim against any parent,
subsidiary, or affiliated entity of the Company, or any director, officer,
employee, or agent of the Company or of any such parent, subsidiary, or
affiliated entity. It also includes any claim against the Employee by the
Company, or any parent, subsidiary or affiliated entity of the
Company.
11.2 Claims
Subject to Arbitration.
Excepting only claims excluded in Section 11.3 below, Section 11.1 specifically
includes (without limitation) all claims under or relating to any federal,
state
or local law or regulation prohibiting discrimination, harassment or retaliation
based on race, color, religion, national origin, sex, age, disability or any
other condition or characteristic protected by law; demotion, discipline,
termination or other adverse action in violation of any contract, law or public
policy; entitlement to wages or other economic compensation; any Claim for
personal, emotional, physical, economic or other injury; and any Claim for
business torts or misappropriation of confidential information or trade
secrets.
11.3 Claims
Not Subject to Arbitration.
This
Section 11 does not preclude either party from making an application to a court
of competent jurisdiction for provisional remedies (e.g.,
temporary restraining order or preliminary injunction). This Section 11 also
does not apply to any claims by Employee: (i) for workers’ compensation
benefits; (ii) for unemployment insurance benefits; (iii) under a benefit plan
where the plan specifies a separate arbitration procedure; (iv) filed with
an
administrative agency which are not legally subject to arbitration under this
Agreement; or (v) which are otherwise expressly prohibited by law from being
subject to arbitration under this Agreement.
11.4 Procedure.
The
arbitration shall be conducted in Broward County, Florida. Any Claim submitted
to arbitration shall be decided by a single, neutral arbitrator (the
“Arbitrator”). The parties to the arbitration shall mutually select the
Arbitrator not later than 45 days after service of the demand for arbitration.
If the parties for any reason do not mutually select the Arbitrator within
the
45-day period, then any party may apply to any court of competent jurisdiction
to appoint a retired judge as the Arbitrator. The arbitration shall be conducted
in accordance with the laws of the State of Florida, as amended, except as
modified by this Agreement. The Arbitrator shall apply the substantive federal,
state, or local law and statute of limitations governing any Claim submitted
to
arbitration. In ruling on any Claim submitted to arbitration, the Arbitrator
shall have the authority to award only such remedies or forms of relief as
are
provided for under the substantive law governing such Claim. The Arbitrator
shall issue a written decision revealing the essential findings and conclusions
on which the decision is based. Judgment on the Arbitrator’s decision may be
entered in any court of competent jurisdiction.
9
11.5 Costs.
Employee shall only pay that portion of the fees and costs incurred in the
arbitration (e.g.,
filing
fees and transcript costs) that he would normally pay in the course of
litigation. All other fees and costs, including the Arbitrator’s fees, shall be
borne by the Company. The parties shall be responsible for their own attorneys’
fees and costs, except that the Arbitrator shall have the authority to award
attorneys’ fees and costs to the prevailing party in accordance with the
applicable law governing the dispute.
11.6 Interpretation
of Arbitrability.
The
Arbitrator, and not any federal or state court, shall have the exclusive
authority to resolve any issue relating to the interpretation, formation or
enforceability of this Section 11, or any issue relating to whether a Claim
is
subject to arbitration under this Section 11, except that any party may bring
an
action in any court of competent jurisdiction to compel arbitration in
accordance with the terms of this Section 11.
12. Successors
and Assigns; Assignment.
Except
as otherwise provided in this Agreement, this Agreement, and the rights and
obligations of the parties hereunder, will be binding upon and inure to the
benefit of their respective successors, assigns, heirs, executors,
administrators and legal representatives. The Company may assign any of its
rights and obligations under this Agreement. Employee shall not assign, whether
voluntarily or by operation of law, any of its rights and obligations under
this
Agreement, except with the prior written consent of the Company.
13. Further
Assurances.
The
parties agree to execute such further documents and instruments and to take
such
further actions as may be reasonably necessary to carry out the purposes and
intent of this Agreement.
14. Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties relating to
the
subject matter of this Agreement and supersedes all prior and contemporaneous
negotiations, understandings, or agreements between the parties, whether oral
or
written, expressed or implied, except for the Assignment of Intellectual
Property, dated as of the same date hereof.
15. Counterparts.
This
Agreement may be executed by the parties in counterparts, each of which shall
be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
16. Headings.
The
headings of sections of this Agreement are included solely for convenience
of
reference and shall not control the meaning or interpretation of any of the
provisions of this Agreement.
17. Notices.
Any
notice required or permitted to be given under this Agreement shall be
sufficient if in writing, and if sent by certified or registered mail or
personally delivered to Employee at 00000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxx
00000, or to the Company at 000 X. Xxx Xxxx Xxxx., Xxxxx 000, Xx. Xxxxxxxxxx,
XX
00000, Attn: Chief Executive Officer (or
to
such other address as the Company by notice to the Employee may designate in
writing or via electronic mail from time to time).
[Signatures
on Following Page]
10
IN
WITNESS WHEREOF,
each of
the parties hereto has executed this Agreement as of the date first written
above.
| PURPLE BEVERAGE COMPANY, INC. |
EMPLOYEE
|
||
|
By:
|
/s/
Xxxxxxxx Xxxxxxxxxx
|
/s/
Xxxxxxx X. Xxxxxxx
|
|
|
Xxxxxxxx
Xxxxxxxxxx,
|
Xxxxxxx
X. Xxxxxxx
|
||
|
Chief
Executive Officer
|
|||
11
EXHIBIT
A
MINIMUM
DUTIES AND OBLIGATIONS
12
EXHIBIT
B
FORM
OF GRANT AND VESTING SCHEDULE
(attached)
13
EXHIBIT
C
PRIOR
INVENTIONS
1. I
acknowledge that I have not conceived, made, or reduced to practice (alone
or
jointly with others) any Inventions other than the following, which are excluded
from application of this Agreement (if none, so state):
|
_______________________________________________________________________________.
|
|
[Specify
generally to avoid disclosure of another’s confidential
information]
|
2. I
acknowledge that I have no other current or prior agreements, relationships,
or
commitments that conflict with this Agreement or with my relationship with
the
Company other than the following (if none, so state):
14
EXHIBIT
D
ACKNOWLEDGMENT
[ONLY
TO BE EXECUTED UPON TERMINATION OF EMPLOYMENT]
I
hereby
certify that I have complied with and will continue to comply with all the
terms
of the Employment
Agreement
of
____[date]____
(“Agreement”), which I signed, including the prompt reporting of all Inventions
conceived or made by me that are covered by the Agreement. All capitalized
terms
used but not defined herein will have the meaning ascribed to them in the
Agreement.
I
further
certify that I do not have in my possession, nor have I failed to return any
Proprietary Information or copies of such information or other documents or
materials, equipment or other property belonging to the Company or its
clients.
I
agree
that, in compliance with the Agreement, I will preserve as confidential and
not
use any Proprietary Information, Inventions or other information that has or
could have commercial value or other utility in the company’s or its clients
business. I will not participate in the unauthorized disclosure of information
that could be detrimental to the interests of the Company or its
clients.
I
further
agree that, in compliance with the Agreement, for a period of one (1) year
from
the termination of my employment with the Company, I, my spouse, and my
immediate family members will not (i) directly compete with current or future
business activities conducted by the Company; (ii) uses any Company information,
equipment, supplies, facilities or materials; (iii) otherwise conflicts with
any
of the Company’s business interests or causes a potential disruption of its
operations; or (iv) directly or indirectly solicit away employees or consultants
of the Company for my own benefit or for the benefit of any other person or
entity.
On
termination of my employment with the Company, I will be employed by
_____[name
of new employer]_____
in
its __[specify]___
division.
15
