Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), dated as of March 17,
2000, is made and entered into by and between Aloha Water Company, Inc., a
Hawaii corporation (the "Company"), and Xxxxxx Xxxxxxx, an individual resident
of the State of Hawaii ("Employee").
WHEREAS, the Company desires to employ Employee as the Company's
President and Chief Operating Officer, and the Employee desires to be employed
by the Company in such capacity, all on the terms set forth herein; and
WHEREAS, Employee has the experience, knowledge and abilities necessary
to enable him to perform his obligations hereunder;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereby agree as follows:
1. DUTIES.
(a) Within the limitations established by the Company's Bylaws
and its Board of Directors ("the Board"), Employee shall have each and all of
the duties and responsibilities of the President and Chief Operating Officer of
the Company as those duties may from time to time be established by the Board.
It is also anticipated that Employee shall be nominated to serve as a director
of the Company throughout the term of this Agreement and will also be nominated
to serve as a director of the Company's parent corporation, Hawaiian Natural
Water Company, Inc. ("HNWC"). Employee shall not be entitled to receive any
additional compensation for such service as a director, except to the extent
otherwise determined by the Board or HNWC.
(b) Employee shall devote his full time and best efforts to
the performance of his duties hereunder and to the advancement of the interests
of the Company and shall not, without the express prior written consent of the
Board, render directly or indirectly to any other person, corporation,
partnership, firm, company, joint venture or other entity any services of any
kind for compensation, or engage in any other activity that would in any manner
whatsoever compete with the Company, be adverse to any interests of the Company,
and/or in any manner whatsoever interfere with the proper performance of
Employee's duties and responsibilities to the Company hereunder. The foregoing
shall not be deemed to preclude or prohibit Employee from performing services
within the civic community including, without limitation, serving on boards of
civic groups, so long as such services do not interfere with Employee's
performance of his duties hereunder.
2. TERM. Unless earlier terminated as provided in Section 7 hereof,
Employee's employment hereunder (the "Employment") shall extend for a term of
one year; provided, however, that the Employment shall automatically be extended
for an additional year (as so extended, the "Term"), and thereafter from year to
year, on the same terms and conditions as are then existing as of the extension
date, unless either party, in its sole and absolute discretion, shall have given
written notice of termination to the other party not less than 90 days prior to
the end of the then current Term.
3. SALARY. During the first year of the Term, Employee shall be
entitled to receive an annual salary of $125,000, payable in equal installments
on the Company's regular payroll dates. Employee's salary hereunder after the
first year of the Term shall be established by mutual agreement of the parties.
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4. BONUS. During each year of the Term, Employee shall be eligible to
receive a bonus in an amount to be determined by the Board based upon the
achievement by the Company of certain performance goals to be established by the
Board, in its discretion, during the first quarter of each year of the Term. Any
such bonus shall be payable by the Company in two equal installments not later
than 90 days and 150 days, respectively, following the end of the year in which
earned.
5. EXPENSES. The Company shall pay or reimburse Employee for all usual,
reasonable and necessary expenses paid or incurred by him in the performance of
his duties hereunder, subject to receipt by the Company of appropriate
documentary proof of such expenditures and to the right of the Company at any
time to place reasonable limitations on expenses thereafter to be incurred or
reimbursed; provided, however, that Employee may not incur any expense or
related group of expenses in excess of $1,000 per month in the aggregate without
the express prior written consent of the Board.
6. EMPLOYEE BENEFITS. Employee shall be entitled to an automobile
allowance of $300 per month. Employee shall also be entitled to participate in
and receive any and all benefits pursuant to any benefit programs maintained by
the Company during the Term that are generally available to other senior
executives of the Company including, without limitation, participation in any
life insurance, hospital, surgical, medical or other group health and accident
benefit plans. In addition, Employee shall be entitled to participate in all
profit sharing, pension, bonus or retirement plans of the Company as may be in
existence during the Term in accordance with their respective terms and
provisions, but, to the extent participation or the amount of participation is
in the discretion of the Board or any committee thereof, Employee's
participation shall likewise be solely in such discretion. Employee shall be
entitled to three weeks' paid vacation during each year of the Term.
7. TERMINATION.
(a) The Employment may be terminated by the Company prior to
the end of its then current Term upon notice to Employee at any time For Cause
(as hereinafter defined). The Employment shall also terminate automatically upon
Employee's death or permanent disability (as defined pursuant to the Company's
long-term disability insurance policy as then in effect). If the Company
terminates the Employment For Cause, or if the Employment terminates
automatically upon Employee's death or permanent disability, the Company shall
have no further obligation to Employee under this Agreement, except the
obligation to pay Employee all salary and benefits accrued through the effective
date of such termination including, in the case of death or permanent
disability, any benefits to which Employee may be entitled under long-term
disability or other insurance programs maintained by the Company (collectively,
"Termination Benefits").
(b) For purposes hereof, the term "For Cause" means (i) the
conviction of Employee of (or plea of nolo contendere to) a felony or any crime
involving moral turpitude, (ii) any embezzlement or intentional misappropriation
by Employee of any assets of the Company (which for this purpose shall not
include the incurrence of any business expense by Employee in good faith in the
performance of his duties hereunder), or (iii) gross negligence by Employee in
the performance of his duties hereunder, but does not mean the Company's
disagreement with any lawful action undertaken by Employee in the good faith
exercise of his business judgment, subject to the reasonable directives of the
Board.
(c) Subject to receipt of all Termination Benefits then due,
for a period of thirty (30) days following any termination of Employee's
employment hereunder, Employee shall fully cooperate with the Company in all
matters relating to the winding up of Employee's work on behalf of the Company
and the orderly transfer of all pending work and Employee's duties and
responsibilities to such other person or persons as may be designated by the
Company, in its sole discretion. Upon any termination of Employee's employment
hereunder, Employee shall immediately deliver to the Company any and all of the
Company's property of any kind or nature whatsoever in Employee's possession,
custody or control, including, without limitation, any and all Confidential
Information (as defined in Section 8 hereof).
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8. CONFIDENTIAL INFORMATION.
(a) Employee recognizes, acknowledges and agrees that as a
result of or in connection with the Employment, he will have access to and
obtain certain Confidential Information (as hereinafter defined), relating to
the Company's business and not generally known to the public or to the Company's
competitors. Employee recognizes, acknowledges and agrees that the Confidential
Information constitutes a valuable, special and unique asset of the Company,
access to and knowledge of which is essential to the performance of Employee's
duties. Employee specifically agrees that, except as directed by the Board,
Employee will not at any time during or for a period of five years after any
termination of the Employment, use or disclose any Confidential Information to
any person whomsoever for any purpose other than for the benefit of the Company.
(b) For purposes hereof, the term "Confidential Information"
means any and all marketing surveys; marketing programs; compensation
arrangements; customer lists; contact lists; agency lists; agency agreements;
pricing information; sources of customers' business plans, projections or
prospects; actual and/or projected expenses; actual and/or projected revenues;
actual and/or projected profits; research or experimental work; data; lists;
files; notes; books; records; drawings and any and all other documents, work
products and/or materials and other information of the Company or its clients or
customers of a confidential, proprietary or secret nature which is or may be
applicable to or related in any way to the business of the Company or its
clients or customers.
9. INJUNCTIVE RELIEF. The parties hereto agree that in the event of the
breach of Section 8 of this Agreement by Employee, monetary damages alone would
not be an adequate remedy to the Company for the injury that would result from
such breach, and that the Company shall be entitled, at any time after any such
breach, to immediately obtain injunctive relief prohibiting any further breach
of this Agreement. Employee further agrees that any such injunctive relief
obtained by the Company shall be in addition to monetary damages.
10. WAIVER OF MODIFICATION. Any waiver, alteration or modifications of
any of the provisions of this Agreement shall not be valid unless made in
writing and signed by the parties hereto. Waiver by either party of a breach of
any provision of this Agreement shall not operate or be construed as a waiver of
any subsequent breach.
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11. SUCCESSORS AND ASSIGNS; ENTIRE AGREEMENT. This Agreement may not be
assigned by either party hereto without the prior written consent of the other
party hereto. This Agreement shall inure to the benefit of, and be binding upon
any successor or assign of the parties hereto. This Agreement constitutes the
entire agreement of the parties with respect to the subject matter hereof and
thereof and supersedes all prior agreements, amendments, memoranda
representations or understandings, whether written or oral, with respect to the
subject matter hereof between the Company and Employee.
12. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Hawaii, without regard to the
conflicts of law provisions thereof.
13. NOTICES. Any notice required or permitted to be given under this
Agreement shall be in writing and delivered in person or sent via facsimile,
with conformation of receipt, by registered, certified or express mail, postage
and fees prepaid, in the case of the Company, to the then-current address of its
then principal office and, in the case of Employee, to the then-current address
of his office of employment hereunder or such other address or to the attention
of such other person as the recipient party will have specified by prior written
notice to the sending party.
14. DESCRIPTIVE HEADINGS. The descriptive headings for the paragraphs
in this Agreement are inserted for convenience only and do not constitute a part
of this Agreement.
15. NEGOTIATED AGREEMENT. This Agreement reflects the negotiations of
both parties hereto. The language used herein shall be deemed to be the language
chosen by the parties hereto to express their mutual intent, and no rule of
strict construction shall be applied.
16. SEVERABILITY. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision will be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
this Agreement.
17. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be construed as an original for all purposes,
but all of which taken together shall constitute one and same Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
the day and year first above written.
ALOHA WATER COMPANY, INC.
By: /s/ XXXXXX XXXXXX
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Xxxxxx Xxxxxx, Chairman
/s/ XXXXXX XXXXXXX
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XXXXXX XXXXXXX
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