EXHIBIT 10.21
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is entered
into this 29th day of October, 1996, between Atlantic Beverage Company, Inc., a
Delaware corporation (the "Company") and Xxxx X. Xxxxxx ("Executive").
RECITALS
WHEREAS, the Company is engaged in the business (the "Business") of
distributing, marketing and selling prepared food and beverage products and
related products and services;
WHEREAS, Executive is skilled and experienced in the Business;
WHEREAS, the Company desires to employ Executive and recognizes that
certain inducements must be offered to Executive in order for the Company to
retain Executive's services;
WHEREAS, Executive and the Company are desirous of entering into an
agreement providing for the employment by the Company of Executive on the terms
provided herein.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, agreements and promises contained herein, the parties agree as
follows:
1 . Employment. The Company hereby agrees to employ Executive and
Executive hereby accepts employment by the Company, subject to the terms and
conditions set forth in this Agreement.
2. Term of Employment.
(a) Initial Term. The initial term of Executive's employment
hereunder (the "Initial Term") shall commence on March 15, 1996 (the "Effective
Date") and shall continue until March 15, 2001, unless sooner terminated in
accordance with the provisions hereof The period commencing on the Effective
Date and ending on the date this Agreement expires or is sooner terminated is
referred to as the "Employment Period."
(b) Automatic Renewal. The Initial Term shall be extended
automatically for additional one year periods commencing on the fifth
anniversary date of the Effective Date and each one-year anniversary thereafter,
unless, no later than six months prior to such date, either party gives notice
to the other party that he or it does not intend to renew this Agreement.
3 . Title and Duties. During the Employment Period, Executive's title
shall be President and Chief Executive Officer of the Company and he shall
possess such powers and duties as are normally incident to such positions, as
provided in the by-laws of the Company and in accordance with the Delaware
General Corporation Law. Executive shall justly and faithfully discharge his
duties and responsibilities in a diligent manner, devoting such time and
attention to the affairs of the Company as he shall reasonably determine to be
necessary and appropriate, and shall comply with the reasonable rules,
regulations and policies of the Company. During the Employment Period, Executive
shall report to Merrick Elfman and the Board of Directors of the Company.
4. Compensation. Subject to the following provisions of this
Agreement, during theEmployment Period, Executive shall be compensated for his
services as follows:
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(a) Base Amount. During the Employment Period, Executive shall
receive from the Company an annual salary, payable in accordance with the
regularly established payroll policy of the Company, in an amount equal to
$200,000, which amount shall increase annually to reflect normal cost-of-living
adjustments and may increase at such times and in such amounts as are determined
by the Compensation Committee of the Board of Directors (the "Base Amount"). The
Base Amount shall be subject to normal payroll deductions applicable to all
employees of the Company.
(b) Additional Salary. During the first year of the
Employment Period only, the Executive shall receive from the Company salary in
addition to the Base Amount (the "Additional Salary") in the amount of $30,000.
The Additional Salary shall be payable in accordance with the regularly
established payroll policy of the Company, subject to normal payroll deductions
applicable to all employees of the Company.
(c) Cash Flow Bonus. In addition to the Base Salary and the
Additional Salary, during the Employment Period, the Company shall pay to
Executive an annual lump sum bonus payment (the "Cash Flow Bonus") as provided
by this Section 4(c). The Cash Flow Bonus shall be determined as follows:
(Actual Cash Flow - Target Cash Flow) x .20 = Cash Flow Bonus
As used in this Section 4 and elsewhere in this Agreement:
"Company Earnings" means the earnings of the Company, consolidated with
all of the Company's subsidiaries, for an entire fiscal year, before taxes,
interest, depreciation, amortization and other non-cash items, management,
consulting and investment banking fees to related parties, and compensation and
expenses of the Board of Directors, and after capital expenditures.
"Target Cash Flow" means the amount of Company Earnings that are
targeted for an immediately proceeding fiscal year, as set forth in the Budget,
provided, however, that for fiscal year 1996, Target Cash Flow shall be
$3,600,000, and for fiscal year 1997, Target Cash Flow shall be $3,950,000, as
adjusted, in each event the Company acquires or divests (through the purchase or
sale of stock or assets, by merger or otherwise) a subsidiary, upward or
downward by the amount, pro rated on a daily basis, of the earnings of such
subsidiary (calculated on a basis consistent with the determination of Company
Earnings) for the most recent fiscal year.
"Actual Cash Flow" means the actual amount of Company Earnings for a
fiscal year, as determined by the Company's outside auditors in accordance with
generally accepted accounting principles.
"Budget" means the Company's budget for the fiscal years of the
Employment Period as prepared by Company management and approved by the Board of
Directors.
The Cash Flow Bonus shall be paid by the Company to the Executive on an annual
basis during the Employment Period, no later than 30 days after the Company has
completed its audit for an applicable fiscal year, but in no event later than
April 15 of each year for the preceding fiscal year, and shall be deemed accrued
as of December 31 of the year for which it is calculated. The Cash Flow Bonus
for 1996 shall be pro rated on a daily basis from March 15, 1996.
(d) Stock Option. Effective on March 15, 1996, the Company
shall grant to Executive the option (the "Option") to purchase 250,000 shares of
Common Stock (the "Option Shares"), at the exercise price of $1.50 per share,
pursuant to a Stock Option Agreement in the form of Exhibit A attached hereto
and the Company's Stock Option Plan. The Option shall vest and become
exercisable as follows:
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Vesting Dates Percentage of Option Shares Vesting
March 15, 1997 20%
March 15, 1998 20%
March 15, 1999 20%
March 15, 2000 20%
March 15, 2001 20%
provided, however, that to the extent it is not then vested and exercisable, the
Option shall vest and become exercisable in the following amounts upon the
occurrence of any of the following events:
i. On and after the last day of any continuous 10-day period
(excluding any days in which no shares of Common Stock are traded) during which
the average of the bid and asked closing prices at which one share of Common
Stock is traded on the over-the-counter market, as reported on NASDAQ, averages
(over such period):
Average Price Per Share During Period Percentage of Option Shares Vesting
$ 3.50 to $5.99 20%
$ 6.00 to $7.99 40%
$ 8.00 to $9.99 60%
$10.00 to $11.99 80%
$12.00 or higher 100%
the number of Option Shares corresponding to such percentages shall vest and
become exercisable. The parties acknowledge that, as of the date of this
Agreement, 20% of the Option Shares have vested and become exercisable pursuant
to this subsection (d)(i).
ii. At such time as 1.) the Sterling Group shall reduce its
aggregate beneficial ownership of Common Stock to less than 15% ("Sterling
Exit") and 2.) another shareholder with aggregate beneficial ownership of 5% or
more exists (other than by way of such shareholder selling his or her company)
and 3.) Employee has not been additionally designated Chairman of the Board,
100% of the Option Shares shall vest and become exercisable. For purposes of
this Agreement, the Sterling Group consists of Xxxxxxx Xxxxxx, Xxxx X. Xxxxxx,
Xxxxxxx X. Elfinan, Xxxxx Xxxxxxx, Xxxxxx Xxxxxxxxxxx Xxxxx-Xxxxx, and Xxxxxx X.
Xxxxxxx, as well as their spouses and dependent children or trusts established
their benefit.
iii. Upon a Change in Control of the Company, where "Change of
Control" means the earlier of (a) the date on which any person or entity, or
person or entities acting in concert, shall acquire the beneficial ownership of
shares of capital stock or other securities having more than 50% of the voting
power (with respect to the election of directors) then outstanding or (b) the
date on which any person or entity, or persons or entities acting in concert,
shall first disclose any intent to commence an offer to tender for shares of
capital stock or other securities having more than 50% of the voting power, 100%
of the Option Shares shall vest and become exercisable.
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Notwithstanding the foregoing, (a) in the event, and only to the extent, that
any of the Option Shares become vested and exercisable on an accelerated basis
as provided in subsections (i), (ii) and (iii) above, the annual March 15
vesting shall not occur, and (b)Executive shall forfeit all Option Shares
(whether or not then vested and exercisable) if he resigns without Good Reason
(as hereafter defined) before March 15, 1997 and without giving three months
prior written notice.
In no event later than March 15, 1997, the Company shall cause the Option
Shares to be registered (pursuant to a Form S-8 or any successor form) under the
Securities Act of 1933.
(e) Benefit Plans, Additional Benefit.
i. During the Employment Period, Executive shall be entitled to immediately and
fully participate in any profit sharing plan, retirement plan, group life
insurance plan or other insurance plan or medical expense plan maintained by the
Company or any subsidiary of the Company for its executive employees (the
"Benefit Plans"). Executive's participation in the medical Benefit Plans shall
include coverage for his spouse and dependents. Executive will apply the cash
allowance provided in Section 4(e)ii. to pay the necessary premiums of those
Benefit Plans that provide health, dental, disability or life insurance coverage
to Executive, his spouse and dependents. The Benefit Plans are subject to change
from time to time at the sole discretion of the board of directors of the
company maintaining such plans, provided that in any such event, the Company
shall provide a substitute plan or other form of compensation that provides
substantially the same or greater benefits as then enjoyed by Executive and his
spouse and dependents, as applicable.
ii. Every month during the Employment Period, the Company
shall pay to Executive a cash allowance of $1,500, which Executive may use to
pay expenses relating to his employment, including but not limited to benefits
premiums, accounting fees, financial advisory fees, car payments, and dues, as
determined in his sole discretion.
(f) Vacation. For each year of the Employment Period,
Executive shall be entitled to take not less than four weeks of vacation.
Executive's compensation shall be paid in full during such vacations. Each
vacation shall be taken by Executive at such times as are reasonably agreeable
to Executive and the Company.
(g) Expenses. The Company shall reimburse Executive for all
reasonable out of pocket expenses incurred by him in connection with the
performance of his duties hereunder which reimbursement shall be made upon the
presentation by Executive to the Company of proper receipts or other proof of
expenditure, and otherwise in accordance with the Company's standard practices
(applied prospectively only) for reimbursement of its senior executives as
determined by the Board of Directors.
(h) Other Benefits. Executive shall be entitled to such
additional perquisites as may be customarily granted by the Company to its
senior executives generally.
5. Termination. The Employment Period shall terminate
effective on the date of the earliest to occur of the following events:
(a) Just Cause. The Employment Period may be
terminated at the option of the Company for "Just Caus(as such term is
hereinafter defined), effective as of the date the Company gives written notice
to Executive setting forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination ("Notice of Termination"). As used
herein, the term "Just Cause" means:
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i. Executive's conviction of or entry of a plea of
guilty or nolo contenders to a felony (unless the act giving rise thereto was
committed by Executive in the good faith belief that Executive's actions (A)
were in the best interest of the Company, and (B) would not violate criminal
law), or other criminal act involving moral turpitude;
ii. Executive's willful misconduct or gross negligence
resulting in a material breach of his duties hereunder (including fiduciary
duties and such other duties relating to his employment by the Company as are
imposed by applicable law), or any other willful and material breach by
Executive of this Agreement, except by reason of illness or accident, which
shall continue for a period of 15 days after the receipt of written notice from
the Company;
iii. A material conflict of interest that arises
because Executive is directly or indirectly a party to a transaction with the
Company, except for a material conflict of interest of which the Company has
been notified and the Company has agreed to allow;
iv. Executive's refusal, after receipt of written
notice from the Board of Directors, to perform specific directives of the Board
of Directors which are reasonably intended to cause the Company to comply with
applicable laws, rules, regulations, requests of government agencies, or the
like, provided that such directives are consistent with applicable law and the
scope and nature of Executive's duties as set forth herein, or to comply with
the written internal policies and procedures of the Company and its
subsidiaries; and
v. Executive's habitual drunkenness or illegal use of
controlled substances which interferes with the performance of his duties
hereunder.
(b) Operating Just Cause. The Employment Period may be
terminated at the option of the Company for "Operating Just Cause" (as such term
is hereinafter defined), effective as of the date the Company gives Notice of
Termination to Executive. As used herein, the term "Operating Just Cause" means
the Company's failure to achieve at least 70% of the operating income projected
for a fiscal year, as set forth in a Budget (as such term is defined in Section
4 above).
(c) Death or Disability . The Employment Period shall
terminate automatically, effective upon the death of Executive. If Executive is
unable to perform the essential functions of his employment position, due to a
disability of Executive that cannot be reasonably accommodated by the Company,
the Company may terminate Executive effective upon Notice of Termination.
(d) Voluntary resignation. Executive may resign his
employment at any time, effective upon written notice to the Company, provided,
however, that if Executive resigns before March 15, 1997, his resignation shall
be effective three months after the date of such written notice.
(e) Without Cause. The Company may terminate Executive at any
time, effective upon the date of Notice of Termination.
(f) Good Reason. The Employment Period may be terminated at
the option of the Executive for "Good Reason" (as such term is defined in
Section 6(d) below), effective upon written notice to the Company setting forth
in reasonable detail the facts and circumstances claimed to provide a basis for
such termination.
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6. Separation Benefits. Executive shall be entitled to receive
separation benefits in such events and in such amounts as are set forth in this
Section 6.
(a) Termination Without Just Cause or for Good Reason Before
First Anniversary. If, prior to the first anniversary of
the Effective Date, Executive resigns from employment with
the Company for Good Reason (as defined below in Section
6(d)) or is terminated by the Company without Just Cause,
he (or his surviving spouse, estate or personal
representative, as applicable) shall be entitled to
receive:
(i) an amount equal to one-fourth of both the Base Amount and
the Additional Salary (i.e., three months salary) if the Company is then in
default, beyond any applicable cure period, of any of the financial covenants
contained in the Company's loan agreement with its senior institutional lender,
or, if the Company is not then in default, then an amount equal to one-half of
both the Base Amount and the Additional Salary (i.e., six months salary),
without discount, payable in accordance with the regularly established payroll
policy of the Company;
(ii) a lump sum cash payment in an amount equal to the annual
Cash Flow Bonus payment to which Executive would have been entitled in
accordance with Section 4(c), without discount, had he continued in the employ
of the Company for the full fiscal year in which his employment is terminated,
pro rated on a daily basis through the actual date of termination, payable by
the Company in accordance with the terms of Section 4(c);
(iii) for the longest period of time as is permitted by COBRA
law, the Company shall permit, at the Company's expense, Executive, his spouse
and dependents, as applicable (the "Benefit Participants"), to participate in
all group medical and health insurance plans and employee benefit plans,
programs and arrangements now or hereafter made available to the senior
executive employees of the Company (the "Plans") (including but not limited to
such Plans in which Executive was entitled to participate, pursuant to Section
4(f), immediately prior to the date of termination), in the same manner provided
to its other senior executive employees; provided, however, that this Section
shall not apply in the event that (i) the Company shall hereafter terminate the
applicable Plan or (ii) the participation of the Benefit Participants in such
Plan is prohibited by law or, if applicable, would disqualify such Plan as a tax
qualified plan pursuant to the Code, or (iii) the participation of the Benefit
Participants violates the general terms and provisions of such applicable Plan.
In the event that any of the Benefit Participants' participation in such Plans
is prohibited by law or, if applicable, would disqualify the Plan as a tax
qualified plan, the Company shall permit the Benefit Participants to acquire
substantially comparable coverage or benefits, at the Company's expense, from a
source of Executive's or his spouse's choosing, notwithstanding the fact that
such coverage or benefit will result in a higher cost than if provided under a
Company Plan. However, in no event will the Benefit Participants receive from
the Company the coverage and benefits contemplated by this Section if the
Benefit Participants receive such coverage and benefits from any other source.
(b) Termination Without Just Cause or for Good Reason After
First Anniversary. If, on or after the first anniversary of the Effective Date,
Executive resigns from employment with the Company for Good Reason (as defined
below in Section 6(d)) or is terminated by the Company without Just Cause, he
(or his surviving spouse, estate or personal representative, as applicable)
shall be entitled to receive:
(i) an amount equal to (x) one-half of the Base Amount (i.e.,
six months salary), without discount, if Executive's employment is terminated on
or after the first anniversary and before the second anniversary of the
Effective Date, or (y) the Base Amount, without discount, if Executive's
employment is terminated on or after the second anniversary of the Effective
Date, payable in accordance with the regularly established payroll policy of the
Company;
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(ii) a lump sum cash payment in an amount equal to the annual
Cash Flow Bonus payment to which Executive would have been entitled in
accordance with Section 4(c), without discount, had he continued in the employ
of the Company for the full fiscal year in which his employment is terminated,
pro rated on a daily basis through the actual date of termination, payable by
the Company in accordance with the terms of Section 4(c);
(iii) for the longest period of time as is permitted by COBRA
law, the Company shall permit, at the Company's expense, Executive, his spouse
and dependents, as applicable (the "Benefit Participants"), to participate in
all group medical and health insurance plans and employee benefit plans,
programs and arrangements now or hereafter made available to the senior
executive employees of the Company (the "Plans") (including but not limited to
such Plans in which Executive was entitled to participate, pursuant to Section
4(f), immediately prior to the date of termination), in the same manner provided
to its other senior executive employees; provided, however, that this Section
shall not apply in the event that (i) the Company shall hereafter terminate the
applicable Plan or (ii) the participation of the Benefit Participants in such
Plan is prohibited by law or, if applicable, would disqualify such Plan as a tax
qualified plan pursuant to the Code, or (iii) the participation of the Benefit
Participants violates the general terms and provisions of such applicable Plan.
In the event that any of the Benefit Participants' participation in such Plans
is prohibited by law or, if applicable, would disqualify the Plan as a tax
qualified plan, the Company shall permit the Benefit Participants to acquire
substantially comparable coverage or benefits, at the Company's expense, from a
source of Executive's or his spouse's choosing, notwithstanding the fact that
such coverage or benefit will result in a higher cost than if provided under a
Company Plan. However, in no event will the Benefit Participants receive from
the Company the coverage and benefits contemplated by this Section if the
Benefit Participants receive such coverage and benefits from any other source.
(c) Other Termination Events. In the event that
Executive's employment is terminated by the Company with Just Cause, by
Executive without Good Reason, or upon the death of Executive, then Executive
thereupon shall forfeit his right to any compensation, perquisites and benefits
under this Agreement, provided, however, that the Company shall pay to Executive
(or if he shall have died, his surviving spouse, or if he leaves no spouse, his
personal representative, as successor in interest) the value of any accrued
salary and other compensation due to Executive pursuant to Section 4 above
through the date of termination.
(d) Good Reason Defined. For purposes of this Agreement,
"Good Reason" means: (i) a reduction in Executive's title, duties, or working
conditions without Executive's consent; or (ii) a decrease in the Base Amount;
or (iii) the relocation of Executive's office to premises located outside of the
Greater Chicago, Illinois Metropolitan Area; or (iv) a failure by the Company to
comply with any material provision of this Agreement which has not been cured
within 15 days after written notice of such noncompliance has been given by
Executive to the Company; or (v) a Sterling Exit (as defined in Section
4(d)(ii)); or (vi) a Change of Control of the Company (as defined in Section
4(d)(iii)).
(e) Effect of Termination. Notwithstanding anything to
the contrary contained herein, should Executive's employment with the Company be
terminated for any reason whatsoever:
(i) Anti-Disparagement, Etc. The Company (on behalf of itself
and its directors, officers, employees and agents) and the Executive agree that
they will not, under any circumstances, disparage, criticize or denigrate the
talents, skills, prospects, abilities, integrity or character of the Executive,
the Company, its management, directors, employees, agents or representatives
(including those of the Company's affiliates). They further agree that they will
not, at any time after the date hereof and without the other's written consent,
contact any past, present or prospective customer, supplier, employee, employer
or agent or representative of the Company or the Executive with the intent or
purpose of injuring the reputation, business or business relationships of the
Company or the Executive. The provisions of this Section shall survive the
execution and termination hereof, irrespective of the reason for such
termination.
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(ii) Offices, Etc. Executive will no longer have an office at
the Company's places of business, and except as previously agreed in writing by
the Company, will not visit such places. In addition, Executive will resign
from all offices or directorships held at the time of termination.
7. Restrictive Covenants. Executive hereby agrees:
(a) Nondisclosure. Executive acknowledges that he has been and
will be entrusted with trade secrets, marketing, operating and strategic plans,
customer and supplier lists, proprietary information and other confidential or
specialized data and/or information relative to the business of the Company and
its predecessors and subsidiaries (for purposes of this Section 7, the "Company"
shall include its predecessors and subsidiaries), whether now existing or to be
developed or created after the date of this Agreement (collectively, "Trade
Secrets"). Executive shall at all times during the Employment Period and
thereafter hold in strictest confidence any and all Trade Secrets that may have
come or may come into his possession or within his knowledge concerning the
products, services, processes, businesses, suppliers, customers and clients of
the company or its affiliates and their predecessors. Executive agrees that
neither he nor any person or enterprise controlled by him will for any reason
directly or indirectly, for himself or for the benefit of any other person, use,
copy, divulge or otherwise disseminate or disclose any of the Trade Secrets
owned or used by, or licensed to, the Company or any of its affiliates or
otherwise relating to the Company or its business, provided that Executive may
disclose Trade Secrets pursuant to an order by a court of competent
jurisdiction, provided, further, that Executive shall give the Company notice of
such order and any court pleading requesting such disclosure, in order to
provide the Company with an opportunity to prevent such disclosure or procure an
appropriate protective order.
(b) Customers. Executive acknowledges that customer
accounts of the Company and its predecessors are and will at all times be the
sole and separate property of the Company, in which Executive has no rights
whatsoever, and all activities of or work performed by Executive pursuant hereto
or as an employee of the Company or its predecessors have been and in the future
will be performed for the benefit of the Company and the goodwill resulting from
Executive's efforts is and at all times will be the sole and separate property
of the Company, which goodwill is intended to be protected, in part, by this
Section.
(c) Non-Solicitation. Executive agrees that from the
commencement date of the Employment Period and continuing for a period of three
years following the termination of the Employment Period for whatever reason,
neither he nor any person or enterprise controlled by him will solicit or hire
or contract with, for employment, consulting or any other reason, any director,
officer, shareholder, department head, salesman and each of their assistants who
was employed by the Company or its predecessors at any time within one year
prior to the time of the act of solicitation or hire. Provided, however, that
this non-solicitation provision shall not extend past the Employment Period in
the event that this Agreement is terminated by the Company without Just Cause.
(d) Non-Competition. Executive agrees that from the
commencement date of the Employment Period and continuing for a period of two
years following the termination of the Employment Period for whatever reason,
neither he or any person or enterprise controlled by him will become a
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stockholder, director, officer, agent, employee or representative of or
consultant to a corporation or member of a partnership, engage as a sole
proprietor in any business, act as a consultant to any of the foregoing or
otherwise engage directly or indirectly in any enterprise which competes with
the Company in any business in which the Company is engaged (whether or not such
business is subsequently carried on by the Company) in any geographic territory
in which the Company does business on the date the Employment Period ends;
provided, however, that the foregoing shall not prohibit the ownership of less
than two percent (2%) of the outstanding shares of the stock of any company
engaged in any business, which shares are regularly traded on a national
securities exchange or in any over-the-counter market. Provided further, that
this non-competition provision shall not extend past the Employment Period in
the event that this Agreement is terminated by the Company without Just Cause.
(e) Survival. The provisions of this Section shall survive
the termination of this Agreement and Executive's employment with the Company,
irrespective of the reason therefor.
8. Remedies. If, at any time, Executive violates or threatens to
violate to any material extent the covenants set forth in Section 7, the Company
shall have the right to seek injunctive relief or any other appropriate
equitable remedy, without any bond or other security being required, in any
federal or state court sitting in the City of Chicago, Illinois, notwithstanding
the arbitration obligations set forth in Section 16, below, provided, however,
that the applicable time periods set forth in Sections 7(c) and (d) will be
tolled pending the final resolution of any such action that is actually filed by
the Company. Executive acknowledges that the Company would be irreparably
injured by a violation of Section 7.
9. Inventions. Executive hereby assigns to the Company all of his
rights, title and interest in and to all inventions, discoveries, processes,
designs, marketing strategies, and other intellectual property (hereinafter
referred to collectively as the "Inventions"), and all improvements on existing
Inventions made or discovered by Executive during the Employment Period.
Promptly upon the development or making of any such Invention or improvement
thereon, Executive shall disclose the same to the Company and shall execute and
deliver to the Company such reasonable documents as it may request to confirm
the assignment of Executive's rights therein and, if requested by the Company,
shall assist the Company in applying for and prosecuting any patents which may
be available in respect thereof. The Company acknowledges and hereby notifies
Executive that this Section 9 does not apply to an Invention for which no
equipment, supplies, facility or trade secret information of the Company was
used and which was developed entirely on Executive's own time, unless (a) the
Invention relates to (i) the business of the Company, or (ii) the Company's
actual or demonstrably anticipated research or development, or (b) the Invention
results from any work performed by Executive for the Company.
10. Amendment and Termination. This Agreement may not be amended or
otherwise modified, except in a definitive writing signed by the parties hereto.
11. Notices. Any notice required or permitted to be given under this
Agreement shall be sufficient if given in writing and personally delivered or
sent by registered or certified mail, return receipt requested, or by facsimile,
telegram or telex followed by a confirmation letter sent by registered or
certified mail, return receipt requested, addressed as follows:
If to the Company: Atlantic Beverage Company, Inc.
000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Merrick Elfman
Facsimile: (000) 000-0000
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If to Executive: Xxxx X. Xxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
With a copy to: Freebom & Xxxxxx
000 X. Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxx
12. Nonassignment. The interests of Executive under this Agreement are
unique and of a personal service nature, are not subject to the claims of his
creditors and may not be voluntarily or involuntarily assigned, alienated or
encumbered.
13. Successors. This Agreement shall be binding upon, and inure to the
benefit of, the Company and its successors and assigns and upon any person
acquiring, whether by merger, consolidation, purchase of assets or otherwise,
all or substantially all of the Company's assets and business.
14. Severability. If any provision of this Agreement is held invalid or
unenforceable, either in its entirety or by virtue of its scope or application
to given circumstances, such provision shall thereupon be deemed modified only
to the extent necessary to render same valid, or not applicable to given
circumstances, or excised from this Agreement, as the situation may require, and
this Agreement shall be construed and enforced as if such provision had been
included herein as so modified in scope or application, or had not been included
herein, as the case may be. Should this Agreement, or any one or more of its
provisions hereof, be held to be invalid, illegal or unenforceable within any
governmental jurisdiction or subdivision thereof, the Agreement or any such
provision or provisions shall not as a consequence thereof be deemed to be
invalid, illegal or unenforceable in any other governmental jurisdiction or
subdivision thereof.
15. Entire Agreement; Cancellation. This Agreement contains the entire
agreement and understanding of the parties and supersedes all prior
discussions, agreements, and understandings between the parties relating to the
subject matter hereof.
16. Resolution of Disputes. Except as provided in Section 8 above, any
dispute arising out of, connected with, related or incidental to this Agreement
and the documents or instruments delivered in connection herewith, shall be
submitted to arbitration in accordance with the terms of this Section. The party
who is alleging that a dispute exists (the "Complainant") shall send a notice of
such dispute to the other party (the "Respondent"), which notice shall set forth
in detail the dispute, the parties involved and the position of the Complainant
with respect thereto. The notice shall also include a list of five retired
judges selected through JAMS-Endispute, Inc. ("JAMS"), 00 Xxxx Xxxxxxx, Xxxxxxx,
Xxxxxxxx. Within seven days of receiving such notice, the Respondent shall
either accept one of the judges on the list and so inform the Complainant or
deliver via facsimile to the Complainant a list of five judges selected by the
Respondent from the panel at JAMS. If the Respondent rejects the judges on the
Complainant's list and delivers to Complainant its own list of judges,
Complainant, within seven days of receiving Respondent's list, shall inform
Respondent as to whether it will accept one of the judges on Respondent's list.
Should the parties be unable to agree on an arbitrator, then
Complainant shall request that JAMS furnish a list of ten names of available
judges to each party. Within seven days of JAMS's mailing of the list, the
parties shall meet telephonically to designate an arbitrator. Respondent shall
first strike one name from the list and then Complainant shall strike one name.
Thereafter, Respondent and Complainant shall alternately strike names from the
list until one name remains. The last remaining judge on the list shall be
designated as the arbitrator for this action.
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The arbitrator so selected shall schedule a hearing in Chicago on the
disputed issues within 45 days after his appointment, and the arbitrator shall
render his decision after the hearing, in writing, as expeditiously as is
possible, and shall be delivered to the parties. The arbitrator shall render his
decision based on written materials supplied by the parties to the arbitrator as
well as the respective oral presentations of the parties at the hearing, and no
party shall be entitled to discovery in such matter, except for a single request
for documents to be made within ten days after the request for arbitration,
which if not made within such time period shall be deemed waived. Each party
shall supply a copy of any written materials to be submitted to the arbitrator
at least ten days prior to the scheduled hearing. The parties agree that the
arbitrator shall not have any power or authority to award punitive damages. A
default judgment may be entered against any party who fails to appear at the
arbitration hearing. Such decision and determination shall be final and
unappealable and shall be filed as a judgment of record in any jurisdiction
designated by the successful party. All charges and fees charged by JAMS and/or
the arbitrator (whether demanded in advance or at completion of the proceedings)
shall be shared equally by each side. However, all such charges and fees, as
well as any other taxable costs, may be allocated between the respective sides
by the arbitrator as a part of any award herein. The parties hereto agree that
this paragraph has been included to rapidly and inexpensively resolve any
disputes between them with respect to the matters described above, and that this
paragraph shall be grounds for dismissal of any court action commenced by any
party with respect to a dispute arising out of such matters. The parties agree
that any arbitration shall be governed by and pursuant to the Illinois Uniform
Arbitration Act, as amended, and the rules and regulations promulgated
thereunder.
17. Insurance. The Company may, at its election and for its benefit,
insure Executive against disability, accidental loss or death and Executive
shall submit to such physical examinations and supply such information as may be
required in connection therewith.
18. No Conflicting Agreements. Executive represents and warrants that
he is not a party to any agreement, contract or understanding, of any kind, that
would in any way restrict or prohibit him from undertaking or performing
employment in accordance with the terms and conditions hereof.
19. Counterparts. This Agreement may be executed in counterparts, all
of which taken together shall constitute one and the same original agreement of
the parties hereto.
20. Governing Law. This Agreement, and all matters or disputes
relating to the validity, construction, performance or enforcement hereof, shall
be governed, construed and controlled by and under the laws of the State of
Illinois without regard to principles of conflicts of law.
21. Consent to Jurisdiction. The parties hereto hereby irrevocably
submit themselves to the exclusive jurisdiction of the courts of the State of
Illinois located in the City of Chicago and to the jurisdiction of the United
States District Court for the Northem District of Illinois for the purpose of
bringing any action that may be brought in connection with the provisions hereof
and shall not assert any claim that they are not subject to the jurisdiction of
such courts, that the venue is improper, that the forum is inconvenient or any
similar objection, claim or argument. Service of process on any of the parties
hereto with regard to any such action may be made by mailing the process to such
party by regular or certified mail to the address of such party set forth herein
or to any subsequent address to which notices shall be sent.
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IN WITNESS WHEREOF, Executive has set his hand to this Employment
Agreement, and the Company has caused these presents to be executed in its name
and on its behalf, all as of the day and year first above written.
ATLANTIC BEVERAGE COMPANY, INC.
By: _____________________
Its: _____________________
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Xxxx X. Xxxxxx
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