ex10-1
Exhibit 10.1
EMPLOYMENT AGREEMENT
This
EMPLOYMENT AGREEMENT (“Agreement”), dated as of April
13, 2017 (the “Effective Date”), is made by and between
True Drinks Inc., a Delaware corporation, located at 18662
MacArthur Blvd., Ste. 110, Irvine, California 92612 (the
“Company”), and James Greco, whose address is 16904
Pierre Circle, Delray Beach, FL 33446 (“Employee”),
based upon the following:
RECITALS
WHEREAS, the
Company wishes to retain the services of Employee, and Employee
wishes to render services to the Company, as its Chief Executive
Officer; and
WHEREAS, the
Company and Employee wish to set forth in this Agreement the duties
and responsibilities that Employee has agreed to undertake on
behalf of the Company.
THEREFORE, in
consideration of the foregoing and of the mutual promises contained
in this Agreement, the Company and Employee (who are sometimes
individually referred to as a “party” and collectively
referred to as the “parties”) agree as
follows:
AGREEMENT
1.
TERM.
The term of
Employee’s employment under this Agreement shall commence
effective as of the Effective Date and shall continue until
terminated as herein provided. This Agreement may be terminated by
either party, without limitation, by providing notice of
termination of this Agreement to the other party upon thirty (30)
days advance notice, except as permitted upon termination for
“Cause” as set forth in Section 8. The notice period
does not commence until actually received by the other
party.
2. GENERAL
DUTIES.
Employee shall
report to the Company’s board of directors (the
“Board”) and shall devote his best efforts and
substantially all of his productive time and attention to the
Company’s business during the period of this
Agreement. Employee shall do and perform all services,
acts, or things necessary or advisable to discharge his duties as
Chief Executive Officer under this Agreement, and such other duties
as are commonly performed by an employee of his rank or which may,
from time to time, be prescribed by the Company through the Board.
Furthermore, Employee agrees to cooperate with and work to the best
of his ability with the Company’s management team, the
officers and other employees, to achieve the Company’s
financial and business objectives, and to continually improve the
Company’s reputation in its industry for quality products and
performance. Notwithstanding the above, Employee may serve on up to
three other corporate and/or charitable boards and manage his
personal investments providing doing so will not violate any other
provision of this Agreement.
3.
COMPENSATION.
(a) Base
Salary.
(i) For the period between April 13, 2017 and
September 30, 2017, the Employee will be paid a salary of $1 (One
Dollar).
(ii) Beginning on October 1, 2017, and for as
long as the Employee’s employment continues hereunder, the
Company shall pay to Employee a base salary equal to $20,833.33 per
month (“Base Salary”). The Base Salary shall be paid in
cash to Employee in accordance with the periodic payroll practices
of the Company.
(b) Bonus
Restricted Stock. For the period between the Effective Date and
December 31, 2017, the Employee shall earn a guaranteed bonus. As
payment of this guaranteed bonus, on the Effective Date, the
Company shall grant to Employee 1,302,084 restricted shares of the
Company’s Common Stock which will vest on December 31, 2017
upon the Employee’s employment continuing through December
31, 2017.
(c) Stock
Options. On the Effective Date, the Company shall grant to Employee
options to purchase that number of shares of the Company’s
Common Stock equal to two percent (2%) of the Company’s then
issued and outstanding shares of common stock (including preferred
stock on an as-converted basis) (“Employee Options”).
The Employee Options shall have a 5-year term and the exercise
price shall be equal to the 5-day average closing price of the
Company’s Common Stock as of the Effective
Date.
(i) Vesting
Schedule. The Employee
Options shall vest annually over four years beginning on the
Effective Date, with 25% of the Employee Options vesting on the
first, second, third and fourth anniversary of the Effective
Date.
(ii) Change in
Control. Immediately
prior to the effective date of a “Change in Control”,
all unvested Employee Options shall vest and become exercisable.
For purposes of determining whether a Change in Control has
occurred, a “Change in Control” shall mean the
acquisition by any individual, entity, or group (other than Toba
Capital, or an affiliate thereof) of beneficial ownership of 66.6%
or more of the combined voting power of the then issued and
outstanding voting securities of the Company, or any parent of the
Company. In addition, for purposes of determining whether a Change
in Control has occurred, a Change in Control shall also result in
the event a major brand manufactured and distributed by the Company
generating over 50% of the revenue of the Company during the
preceding fiscal year is acquired from the
Company.
(d) Bonus
Stock Options. Beginning in 2018 and for each of the following two
years, the Employee will be eligible to earn bonus stock options
(“Bonus Options”) conditioned upon achieving annual
revenue and EBITDA targets determined by the Board (“Bonus
Targets”). The Bonus Options will be granted on the Effective
Date at an exercise price equal to the five-day average closing
price of the Company’s Common Stock as of the Effective Date.
The Bonus Options for each year shall vest on December 31 of the
bonus year upon the Company achieving at least 90% of the Bonus
Targets for that year. The number of Bonus Options to be granted to
the Employee each year shall equal to 1% of the Company’s
issued and outstanding shares of Common Stock (including preferred
stock on an as-converted basis) as of the Effective Date. Should a
Change in Control occur after March 31 of a bonus year, all
unvested Bonus Options which would vest on December 31 of the year
in which the Change of Control occurs shall vest and become
exercisable.
(e) D&O
Insurance. The Company shall maintain in full force and effect
director’s and officer’s liability insurance to the
extent that such insurance on commercially reasonable terms. Such
insurance shall be in such form, and shall provide for such
coverage and deductibles, as shall be commercially reasonable and
standard for companies in businesses and circumstances similar to
those of the Company. The parties agree and acknowledge that the
Company’s current coverage limits are adequate and
satisfactory.
(f)
Participation In Employee Benefit Plans. Employee shall have the
same rights, privileges, benefits and opportunities to participate
in any of the Company’s employee benefit plans (health,
dental and vision) which may now or hereafter be in effect on a
general basis for executive officers or employees of the Company.
The Company may discontinue any benefit plans and otherwise amend
and change the type and quantity of benefits it provides in its
sole discretion, provided that the Company continues to provide to
Employee any benefits specifically set forth herein. In the event
Employee receives payments from a disability plan maintained by the
Company, the Company shall have the right to offset such payments
against Employee’s Base Salary and any bonuses otherwise
payable to Employee during the period for which payments are made
by such disability plan.
4.
REIMBURSEMENT OF BUSINESS EXPENSES.
The Company
shall promptly reimburse Employee for all reasonable business
expenses incurred by Employee in connection with the business of
the Company including travel from his home to the Company’s
offices and accommodations while there. However, each such
expenditure shall be reimbursable only if Employee furnishes to the
Company adequate records and other documentary evidence required by
federal and state statutes and regulations issued by the
appropriate taxing authorities for the substantiation of each such
expenditure as an income tax deduction.
5. ANNUAL
VACATION. Employee shall be entitled to 20 days vacation time per
calendar year during the term of the Agreement.
6.
INDEMNIFICATION OF LOSSES.
The Company
shall indemnify and hold harmless Employee from any and all
liability arising from Employee’s actions taken on the
Company’s behalf and within Employee’s scope of duties
and authority, so long as such actions were taken by Employee in
good faith and in furtherance of the Company’s business. The
Company shall indemnify and hold Employee harmless to the full
extent of the law from any and all claims, losses and expenses
sustained by Employee as a result of any action taken by him to
discharge his duties under this Agreement, and the Company shall
defend Employee, at the Company’s expense, in connection with
any and all claims by shareholders or third parties which are based
upon actions taken by Employee to discharge his duties under this
Agreement.
7. PERSONAL
CONDUCT.
Employee
agrees to promptly and faithfully comply with all present and
future policies, requirements, directions, and reasonable requests
of Company board and any rules, regulations, or other policies of
the Company in connection with the Company’s business and
Employee’s duties hereunder.
8. TERMINATION
BY THE COMPANY.
Notwithstanding
any provision hereunder, the Company may terminate Employee’s
employment immediately if such termination is for
“Cause.” For purposes of this Agreement,
“Cause” shall mean:
(a) Employee
is convicted of any fraud or embezzlement against the Company;
or
(b) After
written notice and an opportunity to cure, Employee willfully
breaches or habitually neglects the duties and responsibilities
which he is required to perform under the terms of this Agreement;
or
(c) Employee commits such acts of
dishonesty, fraud, misrepresentation, gross negligence or willful
misconduct which results in material harm to the Company or its
business; or
(d) Employee
violates any law, rule or regulation applicable to the Company or
Employee relating to the business operations of the Company that
may have a material adverse effect upon the Company’s
business, operations or condition (financial or
otherwise).
The Company may terminate this Agreement for
Cause immediately upon written notice of termination to
Employee; provided,
however, if the
Company terminates this Agreement due to Employee’s willful
breach or habitual neglect of the duties he is required to perform,
Employee shall be entitled to a period of thirty (30) days from the
date of the initial written notice of termination to cure said
breach. Upon termination, the obligations of Employee and the
Company under this Agreement shall immediately cease. Such
termination shall be without prejudice to any other remedy to which
the Company may be entitled either at law, in equity, or under this
Agreement.
9.
COMPENSATION UPON TERMINATION
(a) Upon
Termination. In the event the Company terminates Employee’s
employment for Cause in accordance with Section 8, Employee shall
receive any payments of Base Salary earned through and including
the date of termination (“Termination
Payment”).
The
Termination Payment shall constitute Employee’s sole right
and exclusive remedy in the event of such termination of
Employee’s employment, and upon payment by the Company of the
Termination Payment, all other rights or remedies otherwise
available shall cease immediately, and the Company shall have no
further obligations to Employee under this Agreement, except that
Employee shall have the right to exercise all benefits that have
vested as of the date of termination to which Employee is entitled
under any compensation or employee benefit plan of the Company in
accordance with the terms and provisions of such compensation or
employee benefit plan, all other documents and agreements that give
rise to or otherwise govern such vested benefits and all applicable
laws and regulations.
(b) Payment on
Termination Without Cause. Upon Termination Without Cause of
Employee’s employment under this Agreement, Employee shall be
entitled to a severance payment (“Severance Payment”)
equal to three times the Employee’s monthly Base Salary per
year of service. This Severance Payment shall be capped at a
maximum amount equal to Employee’s Annual Salary. Years of
service will be calculated from the Effective
Date.
(c)
Exclusivity of Payments. Upon termination of Employee’s
employment under this Agreement, Employee shall not be entitled to
any severance payment or severance benefit from the Company other
than the payments and benefits provided in this Section
9.
(d)
Withholding of Taxes; Tax Reporting. The Company may withhold from
any amount payable under this Agreement all such federal, state,
city and other taxes and may file with appropriate governmental
authorities all such information, returns or other reports with
respect to the tax consequences of any amount payable under this
Agreement as may in the Company’s reasonable judgment be
required.
10.
PROPRIETARY INFORMATION.
(a) Company
Information. Employee agrees at all times during the period of his
employment with the Company and thereafter, to hold in strictest
confidence, and not to use, except for the benefit of the Company,
or to disclose to any person, firm, corporation or other entity
without written authorization of the Board, any Proprietary
Information (as defined herein) of the Company which Employee
obtains, creates, or otherwise accesses in any way. Employee
further agrees not to make copies of such Proprietary Information
except as authorized by the Company. Employee understands that
“Proprietary Information” means any Company proprietary
information, technical data, trade secrets or know-how, including,
but not limited to, research, product plans, products, services,
suppliers, customer lists and customers (including, but not limited
to, customers of the Company on whom Employee called or with whom
Employee became acquainted during the employment), prices and
costs, markets, software, developments, inventions, formulas,
technology, designs, drawings, marketing, licenses, finances,
budgets or other business information disclosed to Employee by the
Company either directly or indirectly in writing, orally or by
drawings or observation of parts or equipment or created by
Employee during the period of employment, whether or not during
working hours. Employee understands that Proprietary Information
also includes, but is not limited to, information pertaining to any
aspects of the Company’s business which is either information
not known by actual or potential competitors of the Company or is
proprietary information of the Company or its customers or
suppliers, whether of a technical nature or otherwise. Employee
further understands that Proprietary Information does not include
any of the foregoing items, which has become publicly and widely
known and made generally available through no wrongful act of
Employee or of others who were under confidentiality obligations as
to the item or items involved.
(b) Former
Employer Information. Employee represents that his performance of
all terms of this Agreement as an employee of the Company have not
breached and will not breach any agreement to keep in confidence
proprietary information, knowledge or data acquired by Employee in
confidence or trust prior or subsequent to the commencement of
employment with the Company, and Employee will not disclose to the
Company, or induce the Company to use, any inventions, confidential
or proprietary information or material belonging to any previous
employer or any other party.
11.
INVENTIONS.
(a) Inventions
Retained and Licensed. Exhibit B attached hereto contains a full
and exhaustive list describing with particularity all inventions,
original works of authorship, developments, improvements, and trade
secrets which were made or otherwise created by Employee prior to
the commencement of Employee’s employment hereunder
(collectively “Prior Inventions”). Such Prior
Inventions belong solely to Employee or belong to Employee jointly
with another as listed therein, which relate in any way to any of
the Company’s proposed businesses, products or research and
development, and which are not assigned to the Company hereunder;
or, if no such list is attached, Employee represents that there are
no such Prior Inventions. If, in the course of employment with the
Company, Employee incorporates into a Company product or service a
Prior Invention owned by Employee or in which Employee has an
interest, the Company is hereby granted and shall have a
non-exclusive, royalty-free, irrevocable, perpetual, worldwide
license (with the right to sublicense) to make, have made, copy,
modify, make derivative works of, use, sell and otherwise
distribute such Prior Invention as part of or in connection with
such product, process or machine.
(b) Assignment of Inventions. Employee
agrees that Employee will promptly make full written disclosure to
the Company, will hold in trust for the sole right and benefit of
the Company, and hereby assign to the Company, or its designee, all
his right, title and interest throughout the world in and to any
and all inventions, original works of authorship, developments,
concepts, know-how, improvements or trade secrets, whether or not
patentable or registrable under copyright or similar laws, which
Employee may solely or jointly conceive or develop or reduce to
practice, or cause to be conceived or developed or reduced to
practice, during the period of time in which Employee is employed
by the Company (collectively referred to as
“Inventions”), except as provided in Section 10(e)
below. Employee further acknowledges that all inventions, original
works of authorship, developments, concepts, know-how,
improvements or trade secrets
which are made by Employee (solely or jointly with others) within
the scope of and during the period of employment with the Company
are “works made for hire” (to the greatest extent
permitted by applicable law) and are compensated by the
compensation provided to Employee pursuant to this Agreement,
unless regulated otherwise by the mandatory law of the state of
California.
(c)
Maintenance of Records. Employee agrees to keep and maintain
adequate and current written records of all Inventions made by
Employee (solely or jointly with others) during the period of
employment with the Company. Such records may be in the form of
notes, drawings, flow charts, electronic data or recordings,
laboratory notebooks, and any other format and shall be made
available to and remain the sole property of the Company at all
times. Employee agrees not to remove such records from the
Company’s place of business except as expressly permitted by
Company policy which may, from time to time, be revised at the sole
election of the Company.
(d) Assistance
and Power of Attorney. Employee agrees to assist the Company, or
its designee, at the Company’s expense, in every way to
secure the Company’s rights in the Inventions and any
copyrights, patents, trademarks, mask work rights, moral rights, or
other intellectual property rights relating thereto in any and all
countries, including the disclosure to the Company of all pertinent
information and data with respect thereto, the execution of all
applications, specifications, oaths, assignments, recordations, and
all other instruments which the Company shall deem necessary in
order to apply for, obtain, maintain and transfer such rights and
in order to assign and convey to the Company, its successors,
assigns and nominees the sole and exclusive rights, title and
interest in and to such Inventions, and any copyrights, patents or
other intellectual property rights relating thereto. Employee
further agrees that it is and shall remain Employee’s
obligation to execute or cause to be executed, when it is in
Employee’s power to do so, any such instrument or papers as
required by the Company after the termination of this Agreement
until the expiration of the last such intellectual property right
to expire in any country of the world. In the event the Company is
unable because of any mental or physical incapacity or
unavailability or for any other reason to secure Employee’s
signature to apply for or to pursue any application for any United
States or foreign patents or copyright registrations covering
Inventions or original works of authorship assigned to the Company
as above, Employee hereby irrevocably designates and appoints the
Company and its duly authorized officers and agents as his agent
and attorney in fact, to act for and on Employee’s behalf and
stead to execute and file any such applications and to do all other
lawfully permitted acts to further the application for,
prosecution, issuance, maintenance or transfer of letters patent or
copyright registrations thereon with the same legal force and
effect as if originally executed by Employee. Employee hereby
waives and irrevocably quitclaims to the Company any and all
claims, of any nature whatsoever, which Employee now or hereafter
has for infringement of any and all proprietary rights assigned to
the Company.
(e) Exception
to Assignments. Employee understands that the provisions of this
Agreement requiring assignment of Inventions to the Company do not
apply to any invention which qualifies fully under the provisions
of California Labor Code Section 2870. Employee shall advise the
Company promptly in writing of any inventions that Employee believe
meet such provisions and are not otherwise disclosed to the
Company.
12. RETURNING
COMPANY DOCUMENTS.
At the time of
the termination of Employee’s employment with the Company,
Employee shall deliver to the Company (and will not keep in his
possession, recreate or deliver to anyone else) any and all
devices, records, data, notes, reports, proposals, lists,
correspondence, specifications, drawings, blueprints, sketches,
laboratory notebooks, materials, flow charts, equipment, other
documents or property, or reproductions of any aforementioned items
developed by Employee pursuant to Employee’s employment with
the Company or otherwise belonging to the Company, its successors
or assigns. Employee further agrees any property situated on the
Company’s premises and owned by the Company, including disks
and other storage media, filing cabinets or other work areas, is
subject to inspection by Company personnel at any time with or
without notice. In the event of the termination of Employee’s
employment hereunder, Employee agrees to sign and deliver a
“Termination Certification” is a form reasonably
requested by the Company.
13.
NOTIFICATION TO OTHER PARTIES.
In the event
that Employee leaves the employ of the Company, Employee hereby
consents to notification by the Company to his new employer about
Employee’s rights and obligations under this
Agreement.
14.
SOLICITATION OF EMPLOYEES, CONSULTANTS AND OTHER
PARTIES.
During the
period of Employee’s employment with the Company, and for a
period of twenty-four (24) months immediately following the
termination of Employee’s employment with the Company for any
reason, Employee shall not either directly or indirectly solicit,
induce, recruit or encourage any of the Company’s employees
or consultants to terminate their relationship with the Company, or
take away such employees or consultants, or attempt to solicit,
induce, recruit, encourage or take away employees or consultants of
the Company, either for himself or for any other person or entity.
Further, for a period of twenty-four (24) months following
termination of Employee’s employment with the Company for any
reason, with or without cause, Employee shall not solicit any
investor in, licensor to, or customer of the Company or licensee of
the Company’s products, with respect to any business,
products or services who are competitive to the products or
services offered by the Company or under development as of the date
of termination of Employee’s employment with the Company.
Employee further agrees that, during the Term and for a period of
five years following the termination of this Agreement, Employee
will not engage in any conduct that is injurious to the
reputation(s) of the Company and/or the Company’s past or
present directors, officers, agents, fiduciaries, trustees,
administrators, employees or assigns, including but not limited to
disparaging (or inducing or encouraging others to disparage) the
Company and/or any of the foregoing individuals. For purposes of
this Agreement, the term “disparage” includes without
limitation, making any statement that would adversely affect in any
manner the conduct of the Company’s businesses, the business
reputation of the Company and/or any of the foregoing individuals,
and/or the personal reputation of any of the foregoing individuals.
[Make this last two sentences reciprocal]
If any of the
foregoing provisions of this Section 14 is found by any court,
agency or arbitrator of competent jurisdiction to be unenforceable
because it extends for too long a period of time or over too great
a range of activities or in too broad a geographic area, it shall
be interpreted to extend over the maximum period of time, range of
activities or geographic area as to which it may be
enforceable.
15.
MISCELLANEOUS
(a)
Preparation of Agreement. It is acknowledged by each party that
such party either had separate and independent advice of counsel or
the opportunity to avail itself or himself of the same. In light of
these facts, it is acknowledged that no party shall be construed to
be solely responsible for the drafting hereof, and therefore any
ambiguity shall not be construed against any party as the alleged
draftsman of this Agreement.
(b)
Cooperation. Each party agrees, without further consideration, to
cooperate and diligently perform any further acts, deeds and things
and to execute and deliver any documents that may from time to time
be reasonably necessary or otherwise reasonably required to
consummate, evidence, confirm and/or carry out the intent and
provisions of this Agreement, all without undue delay or
expense.
(c)
Interpretation.
(i) Entire Agreement/No Collateral
Representations. Each party expressly acknowledges and agrees that
this Agreement, including all exhibits attached hereto: (1) is the
final, complete and exclusive statement of the agreement of the
parties with respect to the subject matter hereof; (2) supersedes
any prior or contemporaneous agreements, promises, assurances,
guarantees, representations, understandings, conduct, proposals,
conditions, commitments, acts, courses of dealing, warranties,
interpretations or terms of any kind, oral or written (collectively
and severally, “Prior Agreements”), and that any such
Prior Agreements are of no force or effect except as expressly set
forth herein; and (3) may not be varied, supplemented or
contradicted by evidence of any Prior Agreement, or by evidence of
subsequent oral agreements. Any agreement hereafter made shall be
ineffective to modify, supplement or discharge the terms of this
Agreement, in whole or in part, unless such agreement is in writing
and signed by the party against whom enforcement of the
modification or supplement is sought.
(ii) Waiver. No breach of any agreement or
provision herein contained, or of any obligation under this
Agreement, may be waived, nor shall any extension of time for
performance of any obligations or acts be deemed an extension of
time for performance of any other obligations or acts contained
herein, except by written instrument signed by the party to be
charged or as otherwise expressly authorized herein. No waiver of
any breach of any agreement or provision herein contained shall be
deemed a waiver of any preceding or succeeding breach thereof, or a
waiver or relinquishment of any other agreement or provision or
right or power herein contained.
(iii) Remedies Cumulative. The remedies of each
party under this Agreement are cumulative and shall not exclude any
other remedies to which such party may be lawfully
entitled.
(iv) Severability. If any term or provision of
this Agreement or the application thereof to any person or
circumstance shall, to any extent, be determined to be invalid,
illegal, or unenforceable under present or future laws effective
during the period of this Agreement, then and, in that event: (A)
the performance of the offending term or provision (but only to the
extent its application is invalid, illegal or unenforceable) shall
be excused as if it had never been incorporated into this
Agreement, and, in lieu of such excused provision, there shall be
added a provision as similar in terms and amount to such excused
provision as may be possible and legal, valid and enforceable, and
(B) the remaining part of this Agreement (including the application
of the offending term or provision to persons or circumstances
other than those as to which it is held invalid, illegal or
unenforceable) shall not be affected thereby and shall continue in
full force and effect to the fullest extent provided by
law.
(v) No Third Party Beneficiary. Notwithstanding
anything else herein to the contrary, the parties specifically
disavow any desire or intention to create any third party
beneficiary obligations, and specifically declare that no person or
entity, other than as set forth in this Agreement, shall have any
rights hereunder or any right of enforcement hereof, except the
heirs and personal representatives of Employee in the event of
Employee’s death or disability.
(vi) Heading; References; Incorporation; Gender.
The headings used in this Agreement are for convenience and
reference purposes only, and shall not be used in construing or
interpreting the scope or intent of this Agreement or any provision
hereof. References to this Agreement shall include all amendments
or renewals thereof. Any pronoun referenced in this Agreement shall
be deemed to include the other gender, including neutral genders or
genders appropriate for entities, if applicable, and the singular
shall be deemed to include the plural, and vice versa, as the
context requires.
(d)
Enforcement.
(i) Applicable Law. This Agreement and the
rights and remedies of each party arising out of or relating to
this Agreement (including, without limitation, equitable remedies)
shall be solely governed by, interpreted under, and construed and
enforced in accordance with the laws (without regard to the
conflicts of law principles thereof) of the State of California, as
if this agreement were made, and as if its obligations are to be
performed, wholly within the State of
California.
(ii) Consent to Jurisdiction; Service of Process.
Any action or proceeding arising out of or relating to this
Agreement shall be filed in and heard and litigated solely before
the state courts of California located within the County of
Orange.
(e) No Assignment of Rights or Delegation of
Duties by Employee. Employee’s rights and benefits under this
Agreement are personal to him and therefore (i) no such
right or benefit shall be subject to voluntary or involuntary
alienation, assignment or transfer; and (ii) Employee may not
delegate his duties or obligations
hereunder.
(f) Notices. Unless otherwise specifically
provided in this Agreement, all notices, demands, requests,
consents, approvals or other communications (collectively and
severally called “Notices”) required or permitted to be
given hereunder, or which are given with respect to this Agreement,
shall be in writing, and shall be given by: (A) personal delivery
(which form of Notice shall be deemed to have been given upon
delivery), (B) by telegraph or by private airborne/overnight
delivery service (which forms of Notice shall be deemed to have
been given upon confirmed delivery by the delivery agency), (C) by
electronic or facsimile or telephonic transmission, provided the
receiving party has a compatible device or confirms receipt thereof
(which forms of Notice shall be deemed delivered upon confirmed
transmission or confirmation of receipt), or (D) by mailing in the
United States mail by registered or certified mail, return receipt
requested, postage prepaid (which forms of Notice shall be deemed
to have been given upon the fifth business day following the date
mailed). Each party, and their respective counsel, hereby agrees
that if Notice is to be given hereunder by such party’s
counsel, such counsel may communicate directly with all principals,
as required to comply with the foregoing notice provisions. Notices
shall be addressed to the address hereinabove set forth in the
introductory paragraph of this Agreement, or to such other address
as the receiving party shall have specified most recently by like
Notice, with a copy to the other parties hereto. Any Notice given
to the estate of a party shall be sufficient if addressed to the
party as provided in this subparagraph.
(g)
Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, and all of which together
shall constitute one and the same instrument, binding on all
parties hereto. Any signature page of this Agreement may be
detached from any form hereto by having attached to it one or more
additional signature pages.
(h) Execution
by All Parties Required to be Binding; Electronically Transmitted
Documents. This Agreement shall not be construed to be an offer and
shall have no force and effect until this Agreement is fully
executed by all parties hereto. If a copy or counterpart of this
Agreement is originally executed and such copy or counterpart is
thereafter transmitted electronically by facsimile or similar
device, such facsimile document shall for all purposes be treated
as if manually signed by the party whose facsimile signature
appears.
IN THE WITNESS
HEREOF, THE PARTIES EXECUTE THIS EMPLOYMENT AGREEMENT AS OF THE
DATE WRITTEN ABOVE:
TRUE DRINKS,
INC.
By: /s/ Dan
Kerker
Dan Kerker,
CFO
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EMPLOYEE
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