AMENDED EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
this 20th day of April, 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. XXXXXXXX, (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 Engineer who has significant
business experience; and
WHEREAS, the Company is desirous of continuing to employ as its
Secretary under the below-described terms and conditions; and
WHEREAS, the Employee is desirous of continued employment by
the Company and the Company is desirous of Employee's continued
employment; and
WHEREAS, it is the intent of the Company that all officers and
management employees will execute an employment agreement as a condition of the
employment; and
WHEREAS, it is the intent of the Company that this Agreement shall
supersede all prior Employment Agreements, amendments, or clarifications
thereto; 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.
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 Accruals - Employee
has been advised that Xxxx XxXxxx and Xxxx Xxxx, 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 any
accruals owed employee shall be paid upon the same percentages of the accrued
amounts as any accruals paid to either Xxxx XxXxxx or Xxxx Xxxx, and that said
accrual shall be paid at the same time as the accruals are paid to either Xxxx
XxXxxx or Xxxx Xxxx. In the event that either Xxxx XxXxxx or Xxxx Xxxx 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 the Xxxx XxXxxx and Xxxx
Xxxx, 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
MvAvoy and/or Xxxx Xxxx receive a salary increase and that Employee's first
salary increase shall be equal to that awarded to Xxxx XxXxxx or Xxxx Xxxx.
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 mean within the
State of Florida, Costa Rica, or any other geographical locale that the Company
is doing business in or has plans to do business in, including Central America,
the Caribbean, and the Southeast United States.
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.
x.Xxxxxxxx'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 8a. and
8b. 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 to written notice.
x.Xxxxxx 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.
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.
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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. XXXXXXXX, XX.
"EMPLOYEE"
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