EXHIBIT 10.19
CONFIDENTIALITY & RESTRICTIVE COVENANTS
1. CONFIDENTIALITY.
(a) The Executive acknowledges that in the course of carrying out,
performing and fulfilling his obligations to the Corporation hereunder, the
Executive will have access to and will be entrusted with information that would
reasonably be considered confidential to the Corporation or its Affiliates, the
disclosure of which to competitors of the Corporation or its Affiliates or to
the general public, will be highly detrimental to the best interests of the
Corporation or its Affiliates. Such information includes, without limitation,
trade secrets, know-how, marketing plans and techniques, cost figures, client
lists, software, and information relating to employees, suppliers, customers and
persons in contractual relationship with the Corporation. Except as may be
required in the course of carrying out his duties hereunder, the Executive
covenants and agrees that he will not disclose, for the duration of this
Agreement or at any time thereafter, any of such information to any person,
other than to the directors, officers, employees or agents of the Corporation
that have a need to know such information, nor shall the Executive use or
exploit, directly or indirectly, such information for any purpose other than for
the purposes of the Corporation, nor will he disclose nor use for any purpose,
other than for those of the Corporation or its Affiliates or any other
information which he may acquire during his employment with respect to the
business and affairs of the Corporation or its Affiliates. Notwithstanding all
of the foregoing, the Executive shall be entitled to disclose such information
if required pursuant to a subpoena or order issued by a court, arbitrator or
governmental body, agency or official, provided that the Executive shall first
have:
(i) notified the Corporation;
(ii) consulted with the Corporation on the advisability of taking
steps to resist such requirements;
(iii) if the disclosure is required or deemed advisable, cooperate
with the Corporation in an attempt to obtain an order or other
assurance that such information will be accorded confidential
treatment.
(b) For the purposes of this Agreement, "Affiliate" shall mean, with
respect to any person or entity (herein the "first party"), any other person or
entity that directs or indirectly controls, or is controlled by, or is under
common control with, such first party. The term "control" as used herein
(including the terms "controlled by" and "under common control with") means the
possession, directly or indirectly, of the power to: (i) vote 50% or more of the
outstanding voting securities of such person or entity, or (ii) otherwise direct
or significantly influence the management or policies of such person or entity
by contract or otherwise.
2. INVENTIONS. The Executive acknowledges and agrees that all right,
title and interest in and to any information, trade secrets, advances,
discoveries, improvements, research materials and data bases made or
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conceived by the Executive prior to or during his employment relating to the
business or affairs of the Corporation, shall belong to the Corporation. In
connection with the foregoing, the Executive agrees to execute any assignments
and/or acknowledgements as may be requested by the board of directors from time
to time.
3. CORPORATE OPPORTUNITIES. Any business opportunities related to
the business of the Corporation which become known to the Executive during his
employment hereunder must be fully disclosed and made available to the
Corporation by the Executive, and the Executive agrees not to take or attempt to
take any action if the result would be to divert from the Corporation any
opportunity which is within the scope of its business.
4. RESTRICTIVE COVENANTS
(a) The Executive will not at any time, without the prior written consent
of the Corporation, during the Term of this Agreement or for a period of 24
months after the termination of this Agreement or the Executive's employment
(regardless of the reason for such termination), either individually or in
partnership, jointly or in conjunction with any other person or persons, firm,
association, syndicate, company or corporation, whether as agent, shareholder,
employee, consultant, or in any manner whatsoever, directly or indirectly:
(i) anywhere in the Territory, engage in, carry on or otherwise
have any interest in, advise, lend money to, guarantee the
debts or obligations of, permit the Executive's name to be
used in connection with any business which is competitive to
the Business or which provides the same or substantially
similar services as the Business;
(ii) for the purpose of competing with any business of the
Corporation, solicit, interfere with, accept any business from
or render any services to anyone who is a client or a
prospective client of the Corporation or any Affiliate at the
time the Executive ceased to be employed by the Corporation or
who was a client during the 12 months immediately preceding
such time;
(iii) solicit or offer employment to any person employed or engaged
by the Corporation or any Affiliate at the time the Executive
ceased to be employed by the Corporation or who was an
employee or during 12 month period immediately preceding such
time.
(b) For the purposes of this Agreement:
(i) "Territory" shall mean Canada, the United States and the
United Kingdom;
(ii) "Business" shall mean the business of manufacturing, selling
and distributing non-alcoholic beverages.
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(c) Nothing in this Agreement, shall prohibit or restrict the Executive
from holding or becoming beneficially interested in up to one (1%) percent of
any class of securities in any corporation provided that such class of
securities are listed on a recognized stock exchange in Canada or the United
States or from complying with his obligations as a barrister, solicitor and
notary public.
5. GENERAL PROVISIONS
(a) The Executive acknowledges and agrees that in the event of a breach of
the covenants, provisions and restrictions in this document, the Corporation's
remedy in the form of monetary damages will be inadequate and that the
Corporation shall be and is hereby authorized and entitled, in addition to all
other rights and remedies available to it, to apply for and obtain from a court
of competent jurisdiction interim and permanent injunctive relief and an
accounting of all profits and benefits arising out of such breach.
(b) The parties acknowledge that the restrictions in this document are
reasonable in all of the circumstances and the Executive acknowledges that the
operation of restrictions contained in this document may seriously constrain his
freedom to seek other remunerative employment. If any of the restrictions are
determined to be unenforceable as going beyond what is reasonable in the
circumstances for the protection of the interests of the Corporation but would
be valid, for example, if the scope of their time periods or geographic areas
were limited, the parties consent to the court making such modification as may
be required and such restrictions shall apply with such modifications as may be
necessary to make them valid and effective.
(c) Undertaking work as a partner or employee of a law firm acting for a
competitor, as defined by this document, shall not be a breach of the
Executive's covenants contained in this document.
(d) Each and every provision of these Sections 1, 2, 3, 4 and 5 shall
survive the termination of this Agreement or the Executive's employment
hereunder (regardless of the reason or such termination).
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Signed this 14th day of July, 2000.
/s/ Mark Halperin
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Mark Halperin
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