AMENDED EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into this
20th day of July, 1997, and is effective as of its execution (the "effective
date") between AQUA XXXXX BOTTLING & DISTRIBUTION, INC., a Colorado for profit
corporation registered to do business in Florida, (the "Company"), and Xxxx X.
Xxxx (the "Employee").
WHEREAS, the Company is a Colorado for profit corporation
registered to do business in Florida; and
WHEREAS, the Company's business plan calls for it to engage in the
bottling and distribution of water to the general public and the acquisition of
water treatment companies; and
WHEREAS, the Employee is an accountant who has significant
business experience;
WHEREAS, the Company is desirous of employing Employee as its
Treasurer under the below-described terms and conditions; and
WHEREAS, the Employee is desirous of being employed by the
Company under the below-described terms and conditions; and
WHEREAS, it is the intent of the Company that all officers and management
employees will execute an employment agreement as a condition of their
employment; and
NOW, THEREFORE, in consideration of the mutual agreements herein made, the
Company and Employment do hereby agree as follows:
1. Employment. The Company hereby employs the Employee, and
Employee hereby accepts employment, upon the terms and conditions
hereinafter set forth.
2. Authority and Power During Employment Period. The duties of Employee
shall be subject to the discretion and direction of the Company's officers and
directors. Employee shall devote full attention to and render exclusive full
time services to the Company and shall be employed solely by the Company
according to the terms of this Agreement.
The employee is being retained to hold the office of Treasurer of Aqua
Xxxxx Bottling & Distribution, Inc. The Company has made Employee aware, and the
Employee agrees, that his duties will not be limited strictly to financial
matters and that his opinions and secondary duties may also include human
resources, employee benefits, customer service, marketing, advertising and
promotion, and general operations where Employee's experience can be used to
best benefit the Company and its shareholders.
3. Term. The term of the employment hereunder will commence
upon execution of this Agreement and shall continue for one (1)
year. Such term shall automatically be extended for each
successive year thereafter, unless i) the parties mutually agree in writing to
alter or amend the terms of the Agreement, or ii) one or goth of the Paries
exercise their rights, pursuant to Paragraph 9 herein, to terminate this
employment relationship.
4. Compensation.
a. Salary. For all services rendered by Employee, pursuant to the terms of
this Agreement, and in consideration of the execution of this Agreement by
Employee, the Company shall pay Employee Seventy Seven Thousand Dollars
($77,000) per year which salary shall be paid as follows:
i. Fifty-two thousand ($52,000) of which shall be paid in cash
on a twice monthly basis; and
ii. Twenty-Five thousand dollars ($25,000) of which will be accrued, which
accrual shall be secured and upon which shall be paid at a reasonable interest
rate.
iii. Salary Increases. Employee has been advised that Xxxx XxXxxx and Xxxx
Xxxxxxxx, II, are also being paid the Seventy Seven Thousand Dollars ($77,000)
per year and are also accruing Twenty Five Thousand Dollars ($25,000) per year.
It has been specifically agreed that employee shall be paid upon the same
percentages of the accrued amounts as any accruals paid to either Xxxx XxXxxx or
Xxxx Xxxxxxxx, II, and that said accrual shall be paid at the same time as the
accruals are paid to either Xxxx XxXxxx or Xxxx Xxxxxxxx, II. In the event that
either Xxxx XxXxxx or Xxxx Xxxxxxxx, II, are offered the opportunity to convert
their accrued wages into equity, then Employee shall be offered the same right
of conversion upon the same terms and conditions.
iv. Salary Increases. Employee has been advised and acknowledged and said
he is aware that Xxxx XxXxxx and Xxxx Xxxxxxxx, II, have like salaries accruing
in like amounts. It has been specifically agreed that employee will receive a
salary increase at the same time that Xxxx XxXxxx and/or Xxxx Xxxxxxxx, II,
receive a salary increase and that Employee's first salary increase shall be
equal to that awarded to Xxxx XxXxxx or Xxxx Xxxxxxxx, II.
5. ESOP and ESAP. The Company agrees that Employee shall be
entitled to awards of common stock pursuant to any stock award or
stock option program offered by the Company.
6. Benefits. Employee shall be entitled to participate in the Company's
benefit programs maintained by the Company for the benefit of employees, in
general, in accordance with and pursuant to the terms of all such plans.
Employee shall also be entitled to receive any other benefits as may, from time
to time, be awarded to him by the Board of Directors.
7. Expenses. The Company shall reimburse Employee for all
authorized and reasonable expenses incurred by Employee during his
employment by the Company. Employee shall be reimbursed expenses
a reasonable time after submitting an expense report in the form provided by and
in compliance with the Company's policies.
8. Covenant Not to Compete and Non-Disclosure of Information.
a. Covenant Not to Compete. Employee acknowledges and
recognizes the highly competitive nature of Company's business, and that the
goodwill, continued patronage, information and business contacts, including
clients, constitute a substantial asset of the Company having been acquired
through considerable time, money and effort. Accordingly, in consideration of
the execution of this Agreement, Employee agrees to the following:
i. During the Restrictive Period (as hereinafter defined),
within the Restricted Area (as hereinafter defined), Employee will
not individually, or in conjunction with others, directly or
indirectly engage in any business activities, whether as an officer,
director, proprietor, employer, partner, independent contractor,
investor (other than as a holder of less than five percent (5%) of
the outstanding capital stock of the corporation), consultant,
advisor, agent or otherwise, which conflict with the Company's
business or Employee's duties.
ii. During the Restrictive Period and within the Restricted
Area, Employee will not directly or indirectly compete with the
Company by soliciting, inducing or influencing any individuals
having business or prospective relationships with the Company to
discontinue or reduce the extent of such relationship with the
Company, or to support any business ventures by Employee in
violation of this Agreement.
iii. During the Restrictive Period and within the Restrictive
Area, Employee will not (a) directly or indirectly recruit, solicit
or otherwise influence any employee or agent of the Company to
discontinue such employment or agency relationship with the Company,
or (b) employ or seek to employ, or cause, assist, or permit any
business which competes directly or indirectly with the Company to
employ or seek to employ, any agent or employee of the Company.
iv. During the Restrictive Period, Employee will not interfere
with or disrupt or attempt to disrupt any past, present or
prospective relationship, contractual or otherwise, between the
Company and any customer, employer or agent of the Company.
v. This covenant is a restrictive covenant and Employee has
knowingly and willingly granted this to the Company and that,
further, the entire Employment Agreement is contingent upon said
covenant.
b. Non-Disclosure of Information. Employee acknowledges that
the Company's trade secrets, private or secret processes, methods
and ideas, as they exist from time to time, customer lists and information
concerning the Company's products, services, training methods, development,
technical information, marketing activities and procedures, credit and financial
data concerning the Company, access to and knowledge of the industry in which
the Company's business is and will be conducted, Employee agrees that all
Proprietary Information heretofore or in the future obtained by the Employee as
a result of the Employee's association with the Company shall be considered
confidential.
In recognition of this fact, Employee agrees that Employee will never use
or disclose any of such Proprietary Information for the Employee's own purposes
or for the benefit of any person or other entity or organization (except the
Company) under any circumstances, unless the Employee is compelled by court
order to disclose such Proprietary Information, or unless Employee obtains prior
written permission from the Company to disclose such Proprietary Information.
c. Documents. "Documents" shall mean all original written, recorded or
graphic matters whatsoever, and any and all copies thereof, including, but not
limited to: paper; books; records; tangible things; correspondence;
communications; telex messages; memoranda; work-papers; reports; affidavits;
statements; summaries; analysis; evaluations; client records and information;
agreements; agendas; advertisements; instructions; charges; manuals; brochures;
publications; directories; industry lists; schedules; price lists; client lists;
statistical records; training manuals; books of accounts; records and invoices
reflecting business operations; E-mail; computer printouts; computer disks; and
all things similar to any of the foregoing however denominated.
d. Restrictive Period. "Restrictive Period" shall be deemed to
be during the Term of this Agreement and any extension thereof, and
for a period of twenty-four (24) months following termination of
this Agreement, regardless of the reason(s) for termination.
e. Restricted Area. "Restricted Area" shall be deemed to be
during the Term of his Agreement and any extension thereof, and for
a period of twenty-four (24) months following termination of this
Agreement, regardless of the reason(s) for termination.
It is understood by and between the Company and Employee that the
foregoing covenants in Paragraphs 7a. and 7b. are essential elements of this
Agreement, and that but for the agreement by employee to comply with such
covenants the Company would not have agreed to enter into this Agreement. Such
covenants by Employee shall be construed to be agreements independent of any
other provisions of this Agreement, and shall survive the termination of this
Agreement and Employees employment with the Company for a period of twenty-four
(24) months after the termination of Employee's employment or five (5) years
from the execution of this Agreement, whichever is longer. The existence of any
other claim or cause of action, whether predicated on any other provision of
this Agreement, or otherwise, as a result of the relationship
between the Parties, shall not constitute a defense to the enforcement of such
covenants against Employee.
f. Remedies.
i. Employee acknowledges and agrees that the Company's remedy at
law for a breach or threatened breach of any of the provisions of
Paragraphs 7a. and 7b. herein would be inadequate and the breach
shall be deemed as causing irreparable harm to the Company. In
recognition of this fact, in the event of a breach by Employee of
any of the provisions of Paragraphs 7a. and 7b., Employee agrees
that, in addition to any remedy at law available to the Company,
including, but not limited to, monetary damages, all rights of
Employee to payment or otherwise under this Agreement and all
amounts then or thereafter due Employee from the Company under this
Agreement may be terminated and the Company, without posting any
bond, shall be entitled to obtain and Employee agrees not to oppose
the Company's request for equitable relief in the form of specific
performance, temporary restraining order, temporary or permanent
injunction, or any other equitable remedy which may be then
available to the Company.
ii. Employee acknowledges that the granting of a temporary
injunction, temporary restraining order or permanent injunction,
merely prohibiting the use of Proprietary Information would not get
an adequate remedy upon breach or threatened breach of Paragraphs
7a. and 7b. and consequently agrees, upon proof of any such breach,
to the granting of injunction relief prohibiting any form of
competition with the Company. Nothing herein contained shall be
construed as prohibiting the Company from pursuing any other
remedies available to it for such breach or threatened breach.
g. Attorney's Fees. Employee agrees that in
the event the Company is required to engage an attorney to enforce
the terms of the covenants in Paragraphs 7a. and 7b. of this
Agreement, Employee shall pay all costs and expenses, whether or
not a suit or complaint is filed in any court of competent
jurisdiction, including a reasonable attorney's fee for the
Company's attorney.
9. Working Conditions. Employee shall have an
office and support staff, including stenographic help and other
facilities and services as are suitable and appropriate for the performance of
his duties. Employee shall keep normal business hours and conduct business at
the Company's offices.
10. Termination.
a. Termination Without Cause. the Company and the Employee may
terminate this Agreement without cause upon giving sixty (60) days
prior written notice. During such sixty (60) day period, Employee
shall continue to perform his duties pursuant to this Agreement,
and the Company shall continue to compensate Employee in accordance
with this Agreement. The Company and the Employee agree that during Employee's
probationary period the written notice requirement shall be reduced to a period
of thirty (30) days prior written notice.
b. Mutual Agreement. The Company and Employee may terminate
this Agreement by mutual agreement.
c. Immediate Termination. This Agreement may be terminated
immediately by the Company upon the occurrence of any of the
following events:
i. Any material violation of this Agreement; or
ii. The death of Employee; or
iii. The disability or incapacity of Employee; or
iv. The willful engagement and misconduct that is
materially injurious to the Company, monetarily or
otherwise; or
v. Employee's commission of any act or acts constituting
a felony under the laws of the United States or any State
thereof.
d. Termination After Failure to Cure Breach. If the Employee
commits a material breach of any provision of this Agreement, the
Company may terminate the Agreement at any time, if after providing
written notice to Employee of the alleged breach or failure, the breach or
failure remains uncured for a period of ten (10) days after receipt of such
notice.
11. Notices. Any notice required or permitted to be given under the terms
of this Agreement shall be sufficient if in writing and if sent postage prepaid
by registered or certified mail, return receipt requested; by overnight
delivery; by courier; or by confirmed telecopy, in the case of the Employee to
the Employee's last place of business or residence as shown on the records of
the Company, or in the case of the Company to its principal office, or such
other place as the Company may designate.
12. Miscellaneous.
a. Further Xxxxxxxxxx.Xx any time, and from time to time, each Party will
execute such additional instruments and take such action as may be reasonably
requested by the other Party to confirm or perfect title to any property
transferred hereunder or otherwise to carry out the intent and purposes of this
Agreement.
b. Costs and Expenses.Each Party hereto agrees to pay its own costs and
expenses incurred in negotiating this Agreement and consummating the
transactions described herein.
c. Time. Time is of the essence.
d. Entire Agreement.This Agreement constitutes the entire Agreement
between the Parties hereto with respect to the subject matter hereof. It
supersedes all prior negotiations, letters and understandings relating to the
subject matter hereof.
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e. Amendment.This Agreement may not be amended, supplemented or modified
in whole or in part except by an instrument in writing signed by the Party or
Parties against whom enforcement of any such amendment, supplement of
modification is sought.
f. Choice of Law.This Agreement will be interpreted, construed
and enforced in accordance with the laws of the State of Florida.
g. Headings.The section and subsection headings in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
h. Pronouns.All pronouns and any variation thereof shall be deemed to
refer to the masculine, feminine, neuter, singular, or plural as the context may
require.
i. Construction.This Agreement shall be construed neither against nor in
favor of either of the Parties hereto, but rather in accordance with the fair
meaning thereof.
j. Effect of Waiver.The failure of any Party at any time or times to
require performance of any provision of this Agreement will in no manner affect
the right to enforce the same. The waiver by any Party of any breach of any
provision of this Agreement will not be construed to be a waiver by ant such
Party of any succeeding breach of that provision or a waiver by such Party of
any breach of any other provision.
k. SeverabilityThe invalidity, illegality or unenforceability of any
provision or provisions of this Agreement will not affect any other provision of
this Agreement, which will remain in full force and effect, nor will the
invalidity, illegality or unenforeceability of a portion of any provision of
this Agreement affect the balance of such provision. In the event that any one
or more of the provisions contained in this Agreement or any portion thereof
shall for any reason be held to be invalid, illegal or unenforceable provision
had never been contained herein. If any court determines that any provision of
Paragraph eight (8) hereof is unenforceable because of the duration or scope of
such provision, such court shall have power to reduce the scope or duration of
such provision, as the case may be, and, in its reduced form, such provision
shall then be enforceable.
l. Binding Nature.This Agreement will be binding upon and will
inure to the benefit of any successors of the Company.
m. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of
which together will constitute one and the same instrument.
Employee acknowledges that he has read all of the terms of this Agreement,
fully understands them, has made a voluntary decision to execute this Agreement
and agrees to abide by its terms and conditions.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first written in Pinellas County, Florida.
WITNESSES: AQUA XXXXX BOTTLING & DISTRIBUTION, INC.,
a Colorado corporation
Print: By: Xxxx X. XxXxxx
Its: President
(Corporate Seal)
Print: Xxxx X Xxxx
"EMPLOYEE"
