EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of November 1, 2004, is between AGU
Entertainment Corp., a Delaware corporation (the "Company"), and John W. Poling
(the "Employee").
RECITALS
A. The Company believes the Employee can make a unique contribution to
the business of the Company.
B. The Board of Directors of the Company believes that the services of
Employee would be of great value to the Company and desires retaining his
services for a period of time.
C. Employee is willing to accept employment by the Company upon the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained and of the mutual benefits herein provided, the
receipt and sufficiency of which are hereby acknowledged, the Company and
Employee hereby agree as follows:
1. TERM OF EMPLOYMENT.
The Company shall employ Employee and Employee hereby accepts
employment by the Company, on the terms and conditions herein contained, for a
period of three (3) years commencing as of the date hereof and ending on the
third (3rd) anniversary of the date hereof, subject to termination as
hereinafter provided (the period from the date hereof through the third
anniversary of the date hereof or the date of such termination, as the case may
be, being the "Employment Period"). This Agreement may be extended for
subsequent one year periods by both parties signing an extension agreement
within 30 days prior to the expiration of this Employment Period.
2. DUTIES.
(a) GENERAL DUTIES. During the Employment Period, and subject to
removal by the any officer or director of the Company in accordance with the
termination provisions hereof Employee shall serve the Company in a role as
described on SCHEDULE A hereto, and such other activities as are consistent with
the performance of these duties and customary within the industry for the
duration of the Employment Agreement, with such duties consistent therewith, and
shall perform such other services for the Company as may be reasonably assigned
to him from time to time by the Board of Directors or any officer of the
Company.
(b) PRIMARY ACTIVITY. During the Employment Period and subject to the
proviso in (b)(i) below, Employee shall devote his full business efforts, time
and energy to the interests and business of the Company; however, Employee shall
be excused from performing any services for the Company hereunder during periods
of temporary illness or incapacity and during reasonable vacations, and Employee
may devote a reasonable amount of time to the handling of his personal affairs,
without thereby in any way affecting the compensation to which he is entitled
hereunder. It is acknowledged that the duties of the employee may often require
from time to time attention to business at times other than normal business
hours. During the Employment Period, Employee shall, to the best of his skill
and ability, use his best efforts and endeavors to the extension and promotion
of the business of the Company, to the proper servicing of such business and to
the protection of the good will of such business, both as now enjoyed and
hereafter acquired. Employee shall not work for any other person or entity other
than the Company during the Employment Period.
(c) TRAVEL. The Employee agrees to travel for business purposes in a
reasonable amount for reasonable lengths of time, commensurate with Employee's
position.
3. COMPENSATION.
As full compensation to Employee for performance of his services
hereunder, the Company agrees to pay Employee and Employee agrees to accept the
following salary and other benefits during the Employment Period:
(a) SALARY. The Company shall pay Employee a salary at the annual rate
of $200,000 per year or such other amount as the Company may from time to time
determine ("Base Salary"). The Base Salary due Employee hereunder shall be
payable in equal bi-weekly installments, less any amounts required to be
withheld by the Company from time to time from such salary under any applicable
federal, state or local income tax laws or similar laws then in effect.
The Employee hereby agrees to defer $1,346.15 per week until such time
as the Company raises an aggregate of $5 million.
(b) REIMBURSEMENT OF EXPENSES. The Company shall reimburse Employee for
all expenses properly incurred by him in the performance of his duties hereunder
in accordance with policies established from time to time by the Board of
Directors of the Company.
(c) FURTHER BENEFITS. Employee shall be entitled to participate in any
health, accident, retirement or similar employee benefit plans provided by the
Company generally to its employees to the extent commensurate with the
participation therein of Employees of the Company. Employee shall be entitled to
participate in any present or future bonus, insurance, pension, retirement,
profit sharing, stock option or other compensation or incentive plans adopted by
the Company, for the general and overall benefit of Employees of the Company,
the extent and manner of participation to be determined by the Board of
Directors of the Company. The benefits provided in this subsection (c) shall be
in addition to the compensation and benefits provided in the other subsections
of this Section 3.
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(d) OFFICES. Employee agrees to serve without additional compensation,
if elected or appointed thereto, in one or more offices or as a director of any
of the Company's parent, affiliates, subsidiaries or sister companies.
(e) VACATION. The Employee shall be entitled to three (3) weeks
vacation per year during the Employment Period.
(f) RELOCATION. The Employee currently resides in West Chester, PA and
will continue to commute to the Company's offices until such time as the Company
is adequately funded. The Company will pay the employee's reasonable travel and
living expenses in connection this travel. Upon relocating to the Company's
offices, the Company will pay the employee's relocation expenses in connection
with moving personal affects, furniture and vehicles to a new residence. The
Company will also provide the employee assistance with certain costs in
connection with acquiring a residence.
4. RESTRICTIONS AGAINST COMPETITION, SOLICITATION, SERVICING,
AND DIVULGING CORPORATE CONFIDENTIAL DATA
(a) COVENANT NOT TO COMPETE. As a material inducement to sign this
Agreement, the Employee agrees that as long as he is an employee of the Company,
he will not Compete with the Company and, further, that he will not Compete with
the Company during the 24 month period beginning on the date of termination of
this Agreement. During the Employment Period and the 24 month period subsequent
to termination, the Employee shall not within the United States directly or
indirectly, either for Employee's own account, or as a partner, shareholder (
other than shares regularly traded in a recognized market), officer, director,
employee, agent, consultant or otherwise, be employed by connected with,
participate in, consult or otherwise associate with any other business,
enterprise or venture that is competitive with the Company or any of its
affiliated entities. During the Employment Period and the two year period
subsequent to termination, the Employee shall not within the United States
directly or indirectly, either for Employee's own account, or as a partner,
shareholder ( other than shares regularly traded in a recognized market),
officer, director, employee, agent, consultant or otherwise, be employed by
connected with, participate in, consult or otherwise associate with any other
business, enterprise or venture that is competitive with the Company or any of
its affiliated entities. During employment and for a period of two years
thereafter, the Employee shall not, directly or indirectly, solicit for
employment or employ any employee of the Company or any of its affiliated
entities. Notwithstanding anything to the contrary herein, the business
activities of Employee with Sage.
(b) COVENANT NOT TO SOLICIT OR SERVICE. The Employee acknowledges and
agrees that the Company has spent significant amounts of time and money in the
development of a list of its customers, distributors, and vendors, which lists
are not available to the general public or the Company's ordinary employees, and
that these lists may contain other information about the customers,
distributors, and vendors not available to the general public and that the
Employee will be privileged to these lists. The Employee also acknowledges and
agrees that the Company's business would be irreparably and greatly damaged by
the use of this information other than for its benefit. Therefore, as a material
inducement to the Company to enter into this Agreement, the Employee will not
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solicit or do business with, or attempt to solicit or do business with, directly
or indirectly any of the Company's customers, distributors or vendors, except on
the Company's behalf and will not solicit or do business with or attempt to
solicit or do business with, directly or indirectly, any of the Company's
customers, distributors, and vendors during the two (2) year period beginning on
the termination of this Agreement except for customer orders, distributors and
vendors generally known to the public.
(c) COVENANT NOT TO VIOLATE CORPORATE CONFIDENCES. The Employee will
have access to and will become aware of confidential information and trade
secrets including Customer data, files, business secrets, and business
techniques not generally available to the public, and this confidential
information has been compiled by the Company, and its parent, its subsidiaries
and affiliates, at great expense and over a great amount of time. The parties
acknowledge that this confidential information gives the Company a competitive
advantage over other businesses in its field of endeavor and that the Company's
business will be greatly and irreparably damaged by the release or use of this
confidential information outside of its own business. Therefore, as a material
inducement to signing this Agreement, the Employee will not, while he is an
employee of the Company, or during the two (2) year period beginning on the
termination of this Agreement, either disclose or divulge this confidential
information to anyone or use this confidential information in any manner to
Compete with the Company or any of its affiliated entities.
(d) ENFORCEMENT. The Company may enforce the provisions of this section
by suit for damages, injunction, or both.
(i) The Company would be irreparably injured by the breach of
any provision of this Section , and money damages alone would not be
an appropriate measure of the harm to the Company from such
continuing breach. Therefore, equitable relief, including specific
performance of these provisions by injunction, would be an
appropriate remedy for the breach of these provisions.
(ii) Money damages will be appropriate with respect to any
past breach of any provision of this Section. Therefore, in case of
any breach of this Section, the breaching party shall render a full
and complete accounting of the gross receipts, expenses, and net
profits that have resulted from such breach and shall be liable for
money damages equal to fifty percent (50%) of the gross amount
derived by such breaching party from all transactions in breach of
this Section, such amount representing the amount of profit the
Company could have derived from its own transaction of such business.
(iii) Should a court of competent jurisdiction determine that
equitable relief is not available to remedy the continuous breach of
any or all of the provision of this Section, an amount of liquidated
damages shall be paid to the Company by the breaching party equal to
fifty percent (50%) of the gross amount derived by such breaching
party from all transactions in breach of this Section, such amount
representing the amount of profit the Company could have derived from
its own transaction of such business.
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(iv) If this Agreement is terminated for any reason
whatsoever, not renewed or extended, the provisions of this Agreement
shall survive and shall be in full force and effect for the period
commencing from the date of actual termination of employment of the
Employee.
(a) Definitions. For the purposes of this Agreement, the
following definitions are applicable:
(1) "Compete." "To Compete" and "to Compete with
the Company" both mean to engage in any business that
is competitive with the Company in any manner
whatsoever as of the date of termination of this
Agreement, including competing as a proprietor,
partner, investor, stockholder, director, officer,
employee, consultant, independent contractor, or
otherwise, within the United States.
(2) "Customer." A "Customer" of the Company is
any person for whom it has performed or attempted to
perform services or sold or attempted to sell any
product or service, whether or not for compensation,
and regardless of the date of such rendition, sale, or
attempted rendition or sale.
5. TERMINATION OF AGREEMENT.
(a) EVENTS OF TERMINATION. The Employment Period shall cease and
terminate upon the earliest to occur of the events specified below:
(i) The close of business on the third (3rd) anniversary of
the date hereof or any extensions thereof;
(ii) the death of Employee;
(iii) termination of Employee's employment for Cause. For the
purpose of this Agreement, the Company shall have "Cause" to
terminate Employee's employment hereunder upon (A) the failure by
Employee to substantially perform his material duties hereunder in
the reasonable discretion of the Company, other than any such failure
resulting from incapacity due to physical or mental illness, (B) the
engaging by Employee in gross negligence or willful misconduct
injurious or potentially injurious to the Company in the Company's
reasonable discretion, (C) the violation by Employee of the
provisions of Section 4 hereof in the reasonable discretion of the
Company, or (D) the conviction of Employee of any crime, other than a
misdemeanor.
(iv) the election by Employee to terminate his employment
hereunder upon 90 days prior written notice;
(v) the election by the Company to terminate Employee's
employment hereunder without cause; or
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(vi) the permanent disability of Employee. For the purpose of
this Agreement, the "permanent disability" of Employee shall mean
Employee's inability, because of his injury, illness, or other
incapacity (physical or mental), to perform the services to the
Company contemplated hereby for a continuous period of 180 days. Such
permanent disability shall be deemed to have occurred on the he 180th
day.
(B) COMPENSATION UPON TERMINATION. If the Employment Period shall cease and
terminate hereunder for any reason, except pursuant to 5(a)(v) above, Company
shall pay to Employee (or his estate in the case of subsection (a)(ii)) his Base
Salary plus any salary deferrals pursuant to Section 3(a) hereof and the
reimbursable expenses incurred under Section 3(b) hereof through the date of
termination. The Company shall have no additional or further liability to
Employee hereunder. If the Employment Period is terminated pursuant to Section
5(a)(v), Employee shall be entitled to severance equal to one years salary and
payable in twelve (12) monthly payments.
(c) EFFECT OF TERMINATION. This Agreement and all liabilities and
obligations of the parties hereto hereunder shall cease and terminate effective
upon any termination of the Employment Period permitted by this Agreement;
provided, however, that Employee's obligations under Section 4 hereof shall
survive any such termination.
(d) REMEDIES. Nothing herein contained shall be construed as
prohibiting any party hereto from pursuing any other remedies available to it
for any breach of any provision hereof.
6. ASSIGNMENT.
This Agreement shall not be assigned by either party hereto, except
that the Company shall have the right to assign its rights hereunder to any
direct or indirect subsidiary of the Company or its parent, any successor in
interest of the Company or its parent whether by merger, consolidation, purchase
of assets or otherwise, and any person controlling or which controls or is under
common control with the Company or its parent, any such subsidiary or any such
successor; provided, however, that any such assignment shall not relieve the
Company of any of its obligations hereunder.
7. NOTICES.
All notices requests, demands and other communications hereunder must
be in writing and shall be deemed to have been given if delivered by hand or
mailed by first class, registered mail, return receipt requested, postage and
registry fees prepaid and addressed as set forth in the Preamble to this
Agreement.
Addresses may be changed by notice in writing signed by the addressee.
8. INVENTIONS.
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Employee shall disclose promptly to Company any and all conceptions and
ideas for inventions, improvements, and valuable discoveries, whether patentable
or not, which are conceived or made by Employee solely or jointly with another
during the period of employment or within one year thereafter and which are
related to the business or activities of the Company. Employee hereby assigns
and agrees to assign all his interest therein to Company or its nominee.
Whenever requested by the Company, Employee shall execute any and all
applications, assigns or other instruments that Company shall deem necessary to
apply for and obtain Letters of Patents of the United States or any foreign
country or to otherwise protect Company's interest therein. These obligations
shall continue beyond termination of employment with respect to inventions,
improvements and valuable discoveries, whether patentable or not, conceived,
made or acquired by Employee during the period of employment or within one year
thereafter, and shall be binding upon Employee's heirs, assigns, executors,
administrators and other legal representatives.
9. RETURN OF PROPERTY.
All correspondence, reports, charts, products, records, designs,
patents, plans, manuals, sales and marketing material, memorandum, advertising
materials, customer lists, distributor lists, vendor lists, telephones, beepers,
portable computers, and any other such data, information or property collected
by or delivered to Employee by or on behalf of the Company, their
representatives, customers, suppliers or others and all other materials compiled
by Employee which pertain to the business of the Company shall be and shall
remain the property of the Company and shall be delivered to the Company
promptly upon its request at any time and without respect upon completion or
other termination of Employee's employment hereunder for any reason.
10. REPRESENTATIONS OF EMPLOYEE.
Employee represents and warrants to the Company that he is not subject to any
restriction or non-competition covenant in favor of a former employer or any
other person or entity, and that the execution of this Agreement by Employee and
his provision of services to the company and the performance of his obligations
hereunder will not violate or be a breach of any agreement with a former
employer or any other person or entity. Further, Employee agrees to indemnify
Company for any claim, including but not limited to attorneys' fees and expenses
of investigation, by any such third party that such third party may now have or
may hereafter have against the Company based upon any noncompetition agreement,
invention or secrecy agreement between Employee and such third party.
11. MISCELLANEOUS.
This Agreement embodies the entire understanding between the parties
hereto respecting the subject matter hereof and no change, alteration or
modification hereof may be made except in writing signed by both parties hereto.
Any prior employment agreement between the Company and Employee shall be deemed
to be superseded for all purposes by this Agreement and, upon the execution and
delivery of this Agreement by Employee and the Company, any such prior
employment agreement shall be deemed to be canceled and of no further force or
effect. The headings in this Agreement are for convenience of reference only and
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shall not be considered as part of this Agreement or to limit or otherwise
effect the meaning hereof. If any provisions of this Agreement shall be held
invalid, illegal or unenforceable in whole or in part, neither the validity of
the remaining part of such provisions nor the validity of any other provisions
of this Agreement shall in any way be affected thereby. This agreement shall in
all respects be governed by and construed in accordance with the laws of the
State of Florida.
12. ADVICE OF COUNSEL
Employee recognizes that the Company is represented by counsel, namely
Blank Rome LLP., and that such counsel does not represent the interests of
Employee. The Company strongly recommends and suggests that Employee obtain its
own counsel to review this Agreement prior to execution of the Agreement. The
Company agrees to provide Employee with a reasonable period of time to have this
Agreement reviewed by its own counsel or any other professional adviser deemed
appropriate by the Employee. Should Employee not choose to have this Agreement
reviewed by its own counsel, then Employee assumes the risk of such decision,
and Employee hereby acknowledges that Company has not unduly influenced Employee
in any way and that Company desires that Employee retain its own counsel.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
Witnesses: "COMPANY"
____________________ By: s/ David C. Levy
-----------------------
David C. Levy, President
"EMPLOYEE"
s/ John W. Poling
-----------------------
John W. Poling
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SCHEDULE A
JOB DESCRIPTION
AGU ENTERTAINMENT CORP
Job Specifications - Chief Financial Officer
TITLE: Executive Vice President, Chief Financial Officer
REPORTS TO: Chief Executive Officer; (with "dotted line" reporting
responsibility to Audit Committee of the Board of Directors)
DIRECT REPORTS: Controller, CIO and Admin Staff.
DUTIES: o Overall responsibility for all financial reporting, and
accounting activities of the company,
o Primary responsibility for interface with the Company's
Investors, shareholders, lenders, stock exchanges and
credit reporting agencies and public reporting
requirements,
o Serve as a member of the senior management team for
integrating the financial and accounting functions into
the company's strategy and operations
o Support the CEO, COO and Subsidiary Presidents in
developing business strategies and managing projects
o Support the CEO, COO and Subsidiary Presidents in the
rationalization of operating facilities, maximizing
capacity utilization, and providing support and capital
for managing and expanding operations,
o Support the CEO, COO and Subsidiary Presidents in the
establishment of a business planning function, in
coordination with the Subsidiary Presidents and in
coordination with the VP's of Operations and Sales &
Marketing
o Primary oversight of the establishment of Policies and
Procedures and improvement in systems and controls,
o Interface regularly with Board of Directors, especially
the Audit Committee
o Support the CEO, COO and Subsidiary Presidents in
developing strategic relationships
o Manage the development and coordination of systems and
controls within and through the AGU information systems
with special emphasis on the rationalization of the
company's Supply Chain operations
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