-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, PXRmMIuVgcIGzcN7dyxv9izVQxsv7+FPijyKBZT5c26RiVo0uhBOSDFjyb4eCDpc 9+nnJFuJAfOBUcWkuo/UPw== 0001116502-03-001094.txt : 20030616 0001116502-03-001094.hdr.sgml : 20030616 20030616124458 ACCESSION NUMBER: 0001116502-03-001094 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 7 CONFORMED PERIOD OF REPORT: 20030603 ITEM INFORMATION: Acquisition or disposition of assets ITEM INFORMATION: Resignations of registrant's directors ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20030616 FILER: COMPANY DATA: COMPANY CONFORMED NAME: XSTREAM BEVERAGE GROUP INC CENTRAL INDEX KEY: 0000853833 STANDARD INDUSTRIAL CLASSIFICATION: BLANK CHECKS [6770] IRS NUMBER: 621386351 STATE OF INCORPORATION: NV FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 033-30158-A FILM NUMBER: 03745013 BUSINESS ADDRESS: STREET 1: 805 E. HILLSBORO BLVD. STREET 2: 2ND FLOOR CITY: DEERFIELD BEACH STATE: FL ZIP: 33441 BUSINESS PHONE: 954-725-8988 FORMER COMPANY: FORMER CONFORMED NAME: GEYSER GROUP LTD DATE OF NAME CHANGE: 20010418 FORMER COMPANY: FORMER CONFORMED NAME: THEME FACTORY INC DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: EAST END INVESTMENTS INC DATE OF NAME CHANGE: 19900131 8-K 1 xstream-8k.txt CURRENT REPORT SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D. C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report: June 3, 2003 XSTREAM BEVERAGE GROUP, INC (Name of Registrant as specified in its charter) NEVADA 33-30158-A 62-1386351 ------ ---------- ---------- (State or other jurisdiction of (Commission File No. (IRS Employer incorporation or organization) Identification No.) 621 NW 53rd Street, Suite 141, Boca Raton, Florida 33431 (561) 982-7997 ----------------------------------------------------------------------- (Address and telephone number of principal executive offices) INFORMATION TO BE INCLUDED IN THE REPORT ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS. Effective as of May 1, 2003 the Company, through its wholly owned subsidiary, Beverage Network of Connecticut, Inc. Acquired substantially all of the assets of Finish-Line Distributors, LLC, a beverage distributor located in Bristol, Connecticut. In consideration for these assets, we paid to Finish-Line Distributors the sum of $150,000 and issued 800,000 shares of common stock. Additional payments to Finish Line will be required depending on gross profits derived from sales through December 31, 2003. ITEM 5. OTHER EVENTS As a result of the resignations of Edward Arioli and Steve Haglund, Barry Willson and Jerome Pearring were appointed to the Company's Board of Directors. In addition, Mr. Willson was appointed CEO and Mr. Pearring, president and chief operating officer. Both Mr. Willson and Mr. Pearring have been working with the Company prior to their appointment as officers and directors. There new employment agreements call for salaries of $85,000 per annum. All stock options previously granted to Mr. Willson or Mr. Pearring have been canceled. The Company has also entered into an amended employment agreement with Theodore Farnsworth, it Chairman. The agreement provides for the same annual salary of $110,000. However, all stock options previously granted to Mr. Farnsworth have been canceled. In connection with the execution of these agreements, the Company has terminated its employee stock option plan. . ITEM 6. RESIGNATION OF REGISTRANT'S DIRECTORS Effective June 3, 2003, both Edward Arioli and Steve Haglund resigned as officers and directors of the Registrant's. The resignations were not the result of any disagreement with the Registrant on any matter relating to the Company's operations, policies or practices. In fact, both Mr. Arioli and Mr. Haglund executed one-year consulting agreements with the Company at an annual compensation rate of $40,000 per year. ITEM 7. EXHIBITS AND REPORTS ON FORM 8-K Exhibit No. - ------- 10.3 Asset Purchase and Sale Agreement between Beverage Network of Connecticut and Finish-Line Distributors, Inc. 10.4 Amended Employment Agreement between the Company and Barry Willson 10.5 Amended Employment Agreement between the Company and Jerome Pearring 10.6 Amended Employment Agreement between the Company and Theodore Farnsworth 10.7 Consulting Agreement between Steve Haglund and Xstream Beverage Group, Inc. 10.8 Consulting Agreement between Edward Arioli and Xstream Beverage Group, Inc. SIGNATURES Pursuant to the requirements of the Securities and Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. Xstream Beverage Group, Inc. /s/Theodore Farnsworth - --------------------------------- BY: Theodore Farnsworth, chairman Dated: This 13th day of June 2003 EX-10.3 3 assetpurchase-agrmnt103.txt ASSET PURCHASE AND SALE AGREEMENT Exhibit 10.3 ASSET PURCHASE AND SALE AGREEMENT --------------------------------- THIS ASSET PURCHASE AND SALE AGREEMENT ("Agreement") made this 1st day of May, 2003, by and between BEVERAGE NETWORK OF CONNECTICUT, INC., a corporation organized and existing under the laws of Florida with offices at 621 N.W. 53rd Street, Suite 145, Boca Raton, Florida (the "Purchaser"), and FINISH-LINE DISTRIBUTORS, LLC, a corporation organized and existing under the laws of Connecticut with offices at 551 Broad Street, Bristol, Connecticut ("Seller"). W I T N E S S E T H: WHEREAS, Seller is willing to sell to Purchaser and Purchaser is willing to buy from Seller, upon the terms and conditions hereinafter set forth, all right, title and interest of the Seller in and to its Assets (as hereinafter defined) (such business is hereinafter collectively called the "Seller's Business"), as more fully set forth in this Agreement; and WHEREAS, Purchaser is a wholly owned subsidiary of Xstream Beverage Group, Inc., a Nevada corporation, whose common stock is publicly traded on the Over-The-Counter-Bulletin Board under the symbol "XSBG". NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. DEFINED TERMS 1.1 "DEFINED TERMS" Where used herein or in any amendments hereto, the following terms shall have the following meanings except as defined otherwise in this Agreement. 1.2 "ASSETS" means those assets to be conveyed hereunder as more fully set forth in the attached Schedule A. 1.3 "BUSINESS" means the business operations presently and heretofore carried on by Seller at its current place of business located at 551 Broad Street, Bristol, Connecticut 06010. 1.4 "BUSINESS DAY" means any day except Saturday, Sunday, or any statutory holiday in the State of Florida. 1.5 "CLOSING DATE" means the 1st day of May 2003 or such other date as may be mutually agreed upon in writing by the parties hereto. 1.6 "PURCHASE DOCUMENTS" means this Agreement and all other agreements, documents or instruments to be executed in connection with this Agreement. 2. PURCHASE OF ASSETS AND PURCHASE PRICE 2.1. Assets. Upon the terms and subject to the conditions provided in this Agreement, Seller shall, at the Closing and as of the Closing Date (as said terms are hereinafter defined), convey, sell, transfer, assign and deliver to Purchaser, and Purchaser shall purchase from Seller, all of Seller's right, title and interest in and to the Products and certain of Seller's assets used in the conduct of Seller's Business, whether constituting real or personal, tangible or intangible personal property, and whether or not in the possession or control of Seller, (hereinafter collectively referred to as the "Assets") including, but without limitation, all of the Assets shown on the schedule hereto attached marked Schedule A. All Assets are to be in good working condition and the inventory of product in good and saleable condition. 2.2 Liabilities. Except for the liabilities and obligations listed on Schedule B (hereinafter collectively referred to as the "Assumed Liabilities"), the Purchaser shall assume no liabilities or other obligations, commercial or otherwise, of Seller, known or unknown, fixed or contingent, choate or inchoate, liquidated or unliquidated, secured or unsecured or otherwise. A. Without in any way limiting the generality of the foregoing, Purchaser shall not assume any obligation or liability of Seller with respect to the following (i) any transaction involving Seller occurring after the Closing Date; (ii) any liability of Seller for federal, state or local taxes, fees, assessments or other similar charges (including without limitation income taxes, real estate taxes, payroll taxes and sales taxes); (iii) any liability for services performed by Seller on or prior to the Closing Date; (iv) except as expressly provided in this Agreement, any responsibility of Seller with respect to salary, wages, vacation pay, savings plans, severance pay, deferred compensation, or other obligations for the benefit of any employee of Seller, including pension benefits accrued (vested or unvested), or arising out of their employment through the Closing Date for which Seller shall be liable; (v) any liability or obligation incurred in connection with or related to the transfer of the Assets pursuant hereto including, but not limited to sales taxes, transfer taxes or stamp taxes; (vi) any liability of any kind whatsoever resulting from the failure of Seller to comply with the requirements of all applicable building, fire, zoning and environmental laws, laws relating to occupational health and safety and other laws applicable to Seller or the conduct of its business; (vii) any liability under any Assumed Contract to the extent such liability arises out of Seller's failure to perform its obligations thereunder to the extent performance is due on or prior to the Closing Date; (viii) any liability of Seller to Seller's stockholders or their relatives or friends; (ix) any indebtedness of Seller to any banks or other lending institutions; (x) liabilities in respect of any pension, profit sharing or other employee benefit plan (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") of Seller; and (xi) any liability, obligation or account payable of Seller not listed on Schedule 2(e). 2.3 Purchase Price. Purchaser shall pay to Seller for the Assets and Assumed Liabilities a fixed and contingent purchase price (the "Purchase Price") payable as follows: The fixed purchase price shall be One Hundred and Fifty Thousand Dollars ($150,000) and Eight Hundred Thousand (800,000) Shares of Xstream Beverage Group, Inc., common stock (the "Shares"). The Shares to be issued under this Agreement shall be restricted shares of common stock as that term is defined under Section 144 of the Securities Act of 1933, as amended. The Fixed Purchase Price shall be due and payable at Closing. The contingent purchase price shall be composed of two elements: If the Gross Profits (defined as gross sales, exclusive of any taxes or shipping less costs of goods sold and permitted returns) derived from the sale of beverage products sold by the Seller for the period January 1, 2003 through June 30, 2003 is greater than $337,000, then Purchaser shall pay to Seller the sum of $75,000 in cash. If the Gross Profits are less than $337,000, then Purchaser will pay Seller the sum of $25,000 in cash and $50,0000 in Xstream common stock as of the valuation date. The valuation date shall be September 15, 2003 and shall be calculated by dividing $50,000 by the average closing bid price for the Xstream common stock for the five days prior to the valuation date. All sums due under this paragraph are due and payable on or before September 30, 2003. If the Gross Profits for the Seller for the period July 1, 2003 through December 31, 2003 are greater than $459,000, then Purchaser shall pay Seller the sum of $75,000, if gross profits are less than $459,000, Purchaser shall pay Seller the sum of $25,000 in cash and $50,000 in Xstream common stock calculated as of the valuation date, January 15, 2004. All sums due under this paragraph shall be calculated by dividing $50,000 by the average closing bid price for the Xstream common stock for the five days prior to the valuation date and are due and payable on or before April 1, 2004. Notwithstanding anything else contained herein to the contrary, in determining gross profits for the sale of Yohimbe, gross profits shall be determined by using the per case cost charged by Xstream to independent third party suppliers. In addition, the minimum price per share in calculating the value of the Xstream common stock shall be $.50 per share In the event of any dispute regarding the computation of gross profits, the parties agree to submit the financial statements to an independent accounting firm who will be charged with responsibility for preparing the required financial information called for in this Agreement, and the determination of the independent accounting firm shall remain binding upon both parties. Where no discrepancy in the accounting is found, the cost of the investigation shall be borne by the challenging party, if the independent investigation determines a variance of less than 10%, the cost shall be borne equally by the parties. If the investigation determines a variance in excess of 10%, the cost of the accounting investigation shall be borne by the party preparing the accounting statements. Any dispute arising under this paragraph shall be initiated by notice to the other party within ten days of any required payment date. Pending the determination of the independent accounting, no monies shall be due and owing except that any stock, which would be issued, shall be determined as of the valuation date. 2.4. Offsets in Purchase Price.In the event that Purchaser shall be obligated to pay any sums which are not specifically set forth on the attached Schedule B, then in that event Purchaser shall be entitled to a dollar for dollar reduction in any further payments due Seller. Said reduction shall first be allocated to any cash payments and secondly to the price of the common stock. Upon notice of any undisclosed liability, Purchaser shall so advise Seller who shall have ten (10) days to cure. In the event that Seller has not resolved the dispute, Purchaser may in its sole and absolute discretion, satisfy the claimed liability and deduct any amounts paid against future amounts due and owing under this Agreement 2.5. Allocation of the Purchase Price. The Purchase Price shall be allocated amongst the Assets as provided in Schedule A attached hereto, and each party shall file in a manner consistent therewith (i) the reports required under Section 1060 of the Internal Revenue Code of 1986, as amended, and (ii) their respective Federal, state and local tax returns. 3. DOCUMENTS TO BE DELIVERED AT CLOSING 3.1. At the Closing: A. Seller shall execute and deliver to Purchaser a Bill of Sale fully executed and in the form of Exhibit C attached hereto, conveying, selling, transferring and assigning to Purchaser all of the Assets free and clear of any and all defects, liens, encumbrances, charges and equities whatsoever. Seller shall also provide the written consent of the Landlord and the consent of any party having a security interest on the Seller's assets. B. Seller shall execute or endorse and deliver to Purchaser other duly executed separate instruments of sale, assignment or transfer, including, but not limited to assignments of contract rights or leases in form suitable, where appropriate, for filing or recording with the appropriate office or agency for various items of the Assets or other rights of Seller to be conveyed hereunder, where, in Purchaser's reasonable judgment, the same are necessary or desirable in order to vest or evidence title hereto in Purchaser. C. Purchaser shall pay the Purchase Price for the Assets in accordance with the terms of Section 2 hereof. D. Seller shall deliver to Purchaser copies, certified by the Secretary of Seller, of (i) certificates of good standing in the jurisdiction of the Seller's incorporation and in each other jurisdiction in which the Seller is doing or transacting business, and (ii) the unanimous written consent of the Board of Directors and the stockholders of Seller authorizing this Agreement and the other agreements and instruments to be delivered pursuant thereto and the transactions contemplated hereby and thereby. E. Purchaser shall deliver to Seller copies, certified by the Secretary of Purchaser, of (i) certificates of good standing in the jurisdiction of the Purchaser's incorporation and in each other jurisdiction in which the Purchaser is doing or transacting business, and (ii) the unanimous written consent of the Board of Directors and stockholders of Purchaser authorizing this Agreement and the other agreements and instruments to be delivered pursuant thereto and the transactions contemplated hereby and thereby. F. Seller shall deliver to the Purchaser all books and records of the Seller relating to the Seller's Business, the Customers, the Assets and the Assumed Liabilities. G. Seller shall deliver to the Purchaser all necessary consents of third parties to the execution and delivery of this Agreement and the consummation of the transactions contemplated including, without limitation, the written consent of the Landlord for the assignment of the Seller's leasehold obligation at its Business location. 4. CLOSING. The Closing of the transactions contemplated by this Agreement, and all deliveries to be made at such time in connection therewith, shall take place at 2101 NW Corporate Blvd., Suite 414, Boca Raton, Florida 33431, upon the satisfaction of all of the conditions set forth in this Agreement on May 1st 2003, such Closing to take place by delivery to such counsel of executed counterparts of this Agreement and all other documents, instruments and certificates required to be delivered by Seller or Purchaser at the Closing (Said Closing and said date thereof, herein referred to as the "Closing" and the "Closing Date", respectively). The effective date of this Agreement shall be the date of execution by the last signatory to this Agreement. 5. REPRESENTATIONS AND WARRANTIES BY SELLER. 5.1. Seller represents and warrants to Purchaser as follows: A. Seller is a corporation duly organized and validly existing under the laws of the State of Connecticut. Seller has full power and authority to own the Assets and conduct its business and that the Assets are owned free and clear of all liabilities of any kind or nature without any liens or encumbrances. B. The execution, delivery and performance of the Purchase Documents by Seller, and the consummation of the transactions contemplated hereby, will not with or without the giving of notice or the lapse of time or both: (i) violate any provision of law, statute, rule or regulation to which Seller is subject, (ii) violate any judgment, order, writ or decree to which Seller is a party or by which it is or may be bound; or (iii) to the knowledge of Seller, result in the breach of or conflict with any term, covenant, condition or provision of, or result in the modification or termination of, or constitute a default under or result in the creation or imposition of any lien, security interest, charge or encumbrance upon any of the Assets being purchased hereunder, under the corporate charter or by-laws or any other agreement, understanding or instrument to which Seller is a party or by which it is or may be bound or affected. C. All necessary corporate action has been taken by Seller to authorize the execution, delivery and performance of the Purchase Documents. The Purchase Documents have been duly and validly authorized, executed and delivered by Seller and constitute the valid and binding obligation of Seller enforceable against it in accordance with their respective terms. D. All consents and approval required for transferring the Assets to Purchaser hereunder and for assigning the agreements, including without limitation all amendments, modifications, and supplements, whether written or oral ("Agreements") and for performing Seller's obligations under the Purchase Documents have been obtained or will be obtained. No consent of any court, governmental agency or other public authority is required as a condition to the enforceability of the Purchase Documents. E. Seller acknowledges that the Assets being transferred per Schedule "A" are owned free and clear of all lines and encumbrances, are not encumbered by any liens or the subject matter of any known or anticipated litigation Seller further acknowledges and agrees that the Purchase Price paid by Purchaser for Sellers' Assets is fair and adequate consideration. F. Seller has conducted its business in compliance with all applicable federal, state and local laws, regulations and ordinances. G. Seller has not received any notice that it is infringing upon the research, development, processes, methods, techniques, inventions, know how patents, patent rights, trade name, trademarks and service marks of any other party. H. Seller is not a party to any written or oral employment, agency or commission agreement with any of its employees that cannot be terminated upon the closing date of this transaction without penalty. No employee, director, officer or stockholder (or any current or former family member thereof) of Seller, either individually or in any other capacity, has a claim of any kind against the Seller, and Seller has no obligation with respect to such person or entity, except the right to current salary or wages, accrued vacation pay, and reimbursable expenses arising in the ordinary course of business. Seller does not contribute to or sponsor any employee welfare or benefit plans, and is not subject to any collective bargaining agreement, for employees. I. Seller is a sophisticated investor and understands the risks and uncertainties involved with the receipt of restricted common stock. Seller has had an opportunity to discuss the operations of both Xstream and Purchaser's business with management and has been provided with any requested information. Seller has also reviewed Xstream's filings on the SEC EDGAR database located at www.sec.gov. J. Seller shall provide Purchaser with such financial information as may be necessary to complete an audit in accordance with those rules and regulations prescribed by the Securities and Exchange Commission. In the event that Seller is unable to supply the requested information and Purchaser is unable to conclude an audit of the Seller's business within 75 days of closing as prescribed by the Securities and Exchange Commission, then in that event, Purchaser may rescind this Agreement and all assets transferred in conjunction therewith shall be returned to the respective parties. K. Seller has paid all personal and intangible property taxes due as a result of the ownership of the assets and there are no amounts due and owing for personal property or intangible property taxes. L. There is (and has not been since its inception) no claim, litigation, action, suit or proceeding, administrative or judicial, pending or threatened against or affecting Seller, or involving any of the Assets, at law or in equity or before any foreign, federal, state, local or other governmental authority, including, without limitation, any claim, proceeding, or litigation for the purpose of enjoining or preventing the consummation of this Agreement, or the transactions contemplated hereby, or otherwise claiming this Agreement, or any of the transactions contemplated hereby or the consummation thereof, is illegal or otherwise improper, nor to Seller's knowledge is there any basis upon which any such claim, litigation, action, suit or proceeding could be brought or initiated. Seller is not (and has not been within the past three years) subject to or in default under any judgment, order, writ, injunction or decree of any court or any governmental authority, and no replevins, attachments, or executions have been issued or are now in force against Seller. No petition in bankruptcy or receivership has ever been filed by or against Seller. 6. REPRESENTATIONS AND WARRANTIES OF PURCHASER 6.1 Purchaser hereby represents and warrants to Seller as follows: A. Purchaser is a corporation duly organized and validly existing under the laws of the State of Nevada and has full power and authority to own its property and conduct its business. B. The execution, delivery and performance of this Agreement, and the consummation of the transactions contemplated hereby, will not with or without the giving of notice or the lapse of time or both: (i) violate any provision of law, statute, rule or regulation to which Purchaser is subject; (ii) violate any judgment, order, writ or decree to which Purchaser is a party or by which Purchaser is bound; or (iii) result in the modification or termination of, or constitute a default under the corporate charter or by-laws or any other agreement, understanding or instrument to which Purchaser is a party or by which Purchaser is or may be bound or affected. C. All necessary corporate action has been taken by Purchaser to authorize the execution, delivery and performance of this Agreement, and the consummation of the transaction contemplated hereby. This Agreement has been duly and validly authorized and is a binding obligation of Purchaser enforceable against it in accordance with its terms. 7. CONDITIONS TO THE OBLIGATIONS OF SELLER TO CLOSE 7.1 All obligations of Seller hereunder are, at the option of Seller, subject to the conditions that, at the Closing Date: A. All representations and warranties made in this Agreement by Purchaser shall be true and correct as of the Closing Date in all material respects. B. Purchaser shall have tendered the required documents and certificates at the Closing as set forth in Section 3 hereof. C. The Purchase Price described in Section 2.3 hereof due at the Closing shall have been paid by Purchaser. D. All corporate action necessary to authorize (A) the execution, delivery and performance by Purchaser of this Agreement and any other agreements or instruments contemplated hereby to which Purchaser is a party and (B) the consummation of the transactions and performance of its other obligations contemplated hereby and thereby shall have been duly and validly taken by Purchaser, and the Seller shall have been furnished with copies of all applicable resolutions adopted by the board of directors of Purchaser, certified by the Secretary or Assistant Secretary of Purchaser. 8. CONDITIONS TO THE OBLIGATIONS OF PURCHASER TO CLOSE 8.01 All obligations of Purchaser hereunder are, at the option of Purchaser, subject to the conditions that, at the Closing Date: A. All representations and warranties of Seller contained in this Agreement shall be true and correct as of the Closing Date in all material respects. B. Seller shall have performed all commitments hereunder up to the Closing Date and shall have tendered the required documents, instruments and certificates as set forth in Section 3 hereof. C. No action suit, proceeding or investigation by or before any court, administrative agency or other governmental authority shall have been instituted or threatened to restrain, prohibit or invalidate the transactions contemplated by this Agreement or which may affect the right of Purchaser to own, operate or control after the Closing Date the Assets and the Seller's Business. D. All corporate action, necessary to authorize (A) the execution, delivery and performance by the Seller of this Agreement and any other agreements or instruments contemplated hereby or thereby to which Seller is a party and (B) the consummation of the transactions contemplated hereby and thereby shall have been duly and validly taken by Seller, and Purchaser shall have been furnished with copies of all applicable resolutions of Seller certified by the Secretary or Assistant Secretary of the Seller. E. The Seller shall have obtained the approvals, consents and authorizations of all third parties and/or governmental agencies necessary for the communication of the transactions contemplated hereby in accordance with the requirements of applicable laws and agreements. F. Leases. Seller shall at its own cost and expense assign the current existing lease to the Purchaser and obtain all required landlord consents. Any costs assessed by the Landlord in the assignment of the leasehold obligation shall be borne by Seller. In the alternative, Purchaser may prior to Closing negotiate a new lease for the premises. In the event that Purchaser is not able to secure a new lease from the Landlord, Purchaser agrees to indemnify and hold Seller harmless as a result of any liability arising following the Closing. Nothing contained herein shall be construed to impose any liability on the Purchaser for any rental obligations accruing prior to Closing. G. Employment Agreements/Non-Compete. Purchaser shall enter into employment agreements with Joe Pignatella on terms mutually agreeable to the Purchaser and the respective party and the said party shall work on a full time basis and devote his full attention to the business of the Purchaser. All other officers or shareholders of Seller will execute non-compete agreements on closing. 9. INDEMNIFICATIONS 9.01 Seller agrees to indemnify and hold harmless Purchaser from: A. Any and all damages or deficiencies resulting from any misrepresentation, breach of warranty or non-fulfillment of any covenants on the part of Seller under this Agreement. B. Any and all actions, suits, proceedings, demands, assessments, judgments, costs, reasonable attorneys fees, expenses incident to any of the foregoing. C. Any and all liabilities as they relate to the personal property being transferred under this Purchase and Sale Agreement which are not specifically set forth. 9.02 Purchaser agrees to indemnify and hold Seller harmless from: A. Any and all damages or deficiencies resulting from any misrepresentation, breach of warranty or non- fulfillment of any covenant on the part of Purchaser under this Agreement B. Any and all actions, suits, proceeding, demands, assessments, judgments, costs, reasonable attorney's fees and expenses incident to any of the foregoing. 9.03 Any party having an indemnification claim hereunder ("Indemnitee") shall give the other party ("Indemnitor") prompt notice in writing of any claim by any third party which gives rise to a claim for indemnification hereunder, and of any alleged breach of any of the representations and warranties contained in this Agreement. As to any alleged breach of the representations or warranties, written notice shall contain a statement setting forth the nature of the alleged breach or breaches. The Indemnitor shall have thirty (30) days after the delivery of such notice to cure or contest any such claim by a third party or any such alleged breach or breaches. At its option, to be exercised within thirty (30) days of such notice, the Indemnitor may defend against any such action or proceeding with counsel of its choice, at the Indemnitor's expense, it being understood, however, that the Indemnitor's designation of counsel shall be subject to the approval of the Indemnitee, which approval shall not be unreasonably withhold. Additionally, at its own expense the Indemnitee may participate in any such defense with counsel of its choice. As long as the defense is being handled by the Indemnitor, the Indemnitee shall not settle any such claim, action or proceeding without prior written consent of the Indemnitor, except that if the Indemnitee does elect to settle the matter without such consent, the Indemnitor shall be released from the terms of this indemnification. Notwithstanding the foregoing, in the event the Indemnitor elects not to defend any such claim, action, or proceeding, the Indemnitee may do so, in which event the Indemnitor shall continue to indemnify the Indemnitee for any liabilities, losses and damages incurred by the Indemnitee, including any settlement payments and for the reasonable costs and expenses of this counsel. 9.04 All indemnifications made herein by Purchaser and Seller shall survive the closing of this transaction and shall inure to the benefit of the Purchaser's and Seller's heirs, assigns, agents, principals, members and/or shareholders. 10. TERMINATION DEFAULT REMEDIES 10.01. Termination. If either Purchaser or Seller materially defaults in the due and timely performance of any of its warranties, covenants or agreements or in the event of the failure to satisfy or fulfill any of the conditions, the non-defaulting party may on the Closing Date give notice of termination. The notice shall specify the default or defaults upon which the notice is based. The termination shall be effective ten (10) days after the Closing Date, unless the specified default or defaults have been cured on or before the effective date of the termination. 10.02. Default Remedies. Notwithstanding Section 10.01, in the event of a default, the non-defaulting party may seek specific performance of this Agreement against the defaulting party from a court of competent jurisdiction, or alternatively, such non-defaulting party may seek damages from the defaulting party. 10.03. Litigation Costs. If any legal action or other proceeding is brought for the enforcement of this Agreement or to remedy its breach, the prevailing party in such action or proceeding shall be entitled to recover its actual attorney's fees and other costs incurred in the action or proceeding, in addition to such other relief to which it may be entitled. 11. MISCELLANEOUS. 11.01 This Agreement may be assigned by Purchaser without the prior written consent of Seller. 11.02 Survival or Representations. The representations and warranties set forth herein shall survive the execution of this Agreement. 11.03 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter and shall not be change or amended without the prior written consent of all the parties hereto. 11.04 Governing Law and Disputes. This agreement shall be governed by and construed in accordance with the laws of the state of Florida. By entering into this Agreement, the parties agree to the jurisdiction of the courts in Palm Beach County, Florida. 11.05 Captions. The captions herein are for the convenience of the parties and are not to be constructed as part of the terms of this Agreement. 11.06 Waiver. Any waiver by either party of any breach of this Agreement shall not be considered a waiver of any subsequent breach. 11.07 Notices. Any notice or other communication required or permitted to be given hereunder shall be in writing and mailed by registered or certified mail, postage prepaid return receipt requested, to the party to whom it is to be given. 11.08 Severability. In the event that any part of this Agreement is held to be unenforceable, then such provision shall in no way affect the other terms and provisions of this Agreement which shall remain in full force and effect. 11.09 Expenses. Each of the parties hereto shall bear its own expenses in connection with the transactions contemplated. 11.10 Finders Fees. Neither Seller nor Purchaser has incurred nor will either incur any liabilities for finders' fees or commission of any nature whatsoever in connection with the transactions contemplated hereunder. 11.11 Additional Documentation: The parties agree that without the payment of additional consideration, each party will provide the other with such information as may be necessary to carry out the terms and conditions of this Agreement. IN WITNESS WHEREOF, the parties hereto have signed this Agreement under seal on the day and year first above written. SELLER: ATTEST: FINISH-LINE DISTRIBUTORS, LLC. BY: - ---------------------- --------------------------------- ITS: PURCHASER: ATTEST: BEVERAGE NETWORK OF CONNECTICUT, INC. BY: - ---------------------- --------------------------------- ITS: EX-10.4 4 amendedemploy-wilson.txt AMENDED EMPLOYMENT - WILSON Exhibit 10.4 ------------ AMENDED EMPLOYMENT AGREEMENT THIS AMENDED EMPLOYMENT AGREEMENT (THE "AGREEMENT") IS ENTERED INTO BY AND AMONG BARRY WILLSON (THE EMPLOYEE") AND XSTREAM BEVERAGE GROUP, INC., A NEVADA CORPORATION ("XSTREAM"), XSTREAM AND THE EMPLOYEE BEING SOMETIMES HEREINAFTER COLLECTIVELY TO AS THE "PARTIES" OR GENERICALLY AS A "PARTY". NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements hereby exchanged, as well as of the sum of Ten ($10.00) Dollars and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows: Witnesseth: ----------- ARTICLE ONE ----------- TERM, RENEWALS, EARLIER TERMINATION ----------------------------------- 1.1 Term. - --------- Subject to the provisions set forth herein, the term of the Employee's employment hereunder shall be deemed to have commenced as of June 1, 2003 and shall continue until December 31, 2006. 1.2 Renewals. - ------------- (A) This Agreement shall be renewed automatically, after expiration of the original term, on a continuing annual basis, unless the Party wishing not to renew this Agreement provides the other Party with written notice of its election not to renew ("Termination Election Notice") on or before the 30th day prior to termination of the then current term. (B) In the event that in conjunction with a renewal of this Agreement, a Party desires a modification of the terms of this Agreement that are not of general application (e.g., the provisions pertaining to salary, commissions, etc.), then: (1) Such Party shall provide the other with a written notice specifying the requested modifications (the "Modification Request Notice") on or before the 45th day prior to termination of the then current term which; (2) If the modifications specified in the Modifications Request Notice are accepted in writing by the other Party prior to expiration of the then current term, the Modifications Request Notice shall be deemed a written amendment to this Agreement, effective as of the first day of the new renewal term; (3) If the Party receiving the Modifications Request Notice finds the proposed modifications unacceptable, it may initiate negotiations to reach compromise modifications with the Party providing the Modifications Request Notice, which must be concluded and reflected in a written amendment to this Agreement prior to the end of the then current term, failing which, the provisions of Section 1.2(B)(4) will be deemed in effect; (4) If the modifications specified in the Modifications Request Notice are not accepted in writing by the other Party prior to expiration of the then current term, the Modifications Request Notice shall be deemed a Notice of Termination and this Agreement will expire effective as of the close of business on the last day of the then current term. 1.3 Earlier Termination. - ------------------------ XStream shall have the right to terminate this Agreement prior to the expiration of its Term or of any renewals thereof: (a) For Cause: (1) XStream may terminate the Employee's employment under this Agreement at any time for cause. (2) Such termination shall be evidenced by written notice thereof to the Employee, which notice shall specify the cause for termination. (3) For purposes hereof, the term "cause" shall mean: (A) The inability of the Employee, through sickness or other incapacity, to discharge his duties under this Agreement for 90 or more consecutive days or for a XStream of 180 or more days out of a period of 270 days; (B) The failure of the Employee to abide by the directions of Xstream's board of directors; (C) Dishonesty; theft; insubordination or conviction of a crime; (D) Material default in the performance of the Employee's obligations, services or duties required under this Agreement (other than due to illness) or material breach of any provision of this Agreement, which default or breach has not been completely remedied within five days after written notice of such default or breach. (b) Deterioration or Discontinuance of Business: (1) In the event that XStream discontinues operating its business, this Agreement shall terminate as of the last day of the month on which it ceases operation with the same force and effect as if such last day of the month were originally set as the termination date hereof; provided, however, that a reorganization or merger of XStream shall not be deemed a termination of its business. (c) Death: This Agreement shall terminate immediately on the death of the Employee; however, all accrued compensation at such time shall be promptly paid to the Employee's estate. 1.4 Severance Payments and Alternatives to Termination In the event this Agreement is terminated for reasons other than for cause as described in Section 1.3(a)(3)(b) or (c) above, the Employee shall be entitled to receive: (A) All salaries and reimbursements earned through the date of termination; (B) An amount equal to the greater of 200% of the Employee's then prevailing salary or the remaining compensation due under this Agreement whichever is less; (C) Continued participation in those medical, life and disability insurance benefits, if any, which are provided to the Employee as of the last date of employment and continue for a period of one year following the last date of employment with the XStream; (D) In the event of a change in control (as defined below), Employee shall have the option at any time after the date that the change in control occurs to terminate his employment. Under such a change in control termination, the Employee will receive from XStream compensation in the amount equal to 2.99 times the Base Salary, less any Base Salary paid to him from the date of the change in control to the date of termination. The Employee shall have the option to receive this change in control payment in (i) equal installments in the same amount and at the same periodic intervals as if Employee had remained employed by XStream or (ii) in a single lump sum payment. A Change in Control shall mean the occurrence of any event resulting in the current control shareholders individually or collectively beneficially own less than 50% of the then outstanding common stock. 1.5 Final Settlement. - --------------------- Upon termination of this Agreement the Employee or the Employee's representative shall execute and deliver to XStream on a form prepared by XStream, a release of all claims except such claims as may have been submitted pursuant to the terms of this Agreement and which remain unpaid, and, shall forthwith tender to XStream all records, manuals and written procedures, as may be desired by it for the continued conduct of its business. Article Two ----------- Scope of Employment ------------------- 2.1 Retention. - -------------- XStream hereby hires the Employee and the Employee hereby accepts such employment, in accordance with the terms, provisions and conditions of this Agreement. 2.2 General Description of Duties. - ---------------------------------- (A) The Employee shall serve as the Chief Executive Officer. (B) The Employee shall oversee all operational issues related to the ongoing business needs of XStream. The Employee shall at all times be accountable to Xstream's Board of Directors. The Employee is expected to work a minimum of 40 hours per week and devote his full time and attention to the operations of XStream. However, nothing shall prohibit the Employee from engaging in charitable and civic activities and managing his personal passive investments, provided that such passive investments are not in a company which competes in a business similar to that of Xstream's business. (C) The Employee hereby represents and warrants to XStream that he is subject to no legal, self regulatory organization (e.g., National Association of Securities Dealers, Inc.'s bylaws) or regulatory impediments to the provision of the services called for by this Agreement, or to receipt of the compensation called for under this Agreement or any supplements thereto; and, the Employee hereby irrevocably covenants and agrees to immediately bring to the attention of XStream any facts required to make the foregoing representation and warranty continuingly accurate throughout the term of this Agreement, or any supplements or extensions thereof. 2.3 Exclusivity. - ---------------- (A) Unless specifically authorized by this Agreement or is otherwise authorized by XStream's board of directors, on a case by case basis, in writing, all of the Employee's business time shall be devoted exclusively to the affairs of XStream. (B) Without limiting the generality of the foregoing, the Employee covenants to perform the employment duties called for hereby in good faith, devoting substantially all business time, energies and abilities thereto and will not engage in any other business or commercial activities for any person or entity without the prior written consent of Xstream's Board of Directors. 2.4 Limitations on Services - --------------------------- (A) The Parties recognize that certain responsibilities and obligations are imposed by federal and state securities laws and by the applicable rules and regulations of stock exchanges, the National Association of Securities Dealers, Inc., in-house "due diligence" or "compliance" departments of Licensed Securities Firms, etc.; accordingly, the Employee agrees that he will not: (1) Release any financial or other material information or data about XStream without the prior written consent and approval of Xstream's General Counsel or Securities Counsel; (2) Conduct any meetings with financial analysts without informing Xstream's General Counsel and board of directors in advance of the proposed meeting and the format or agenda of such meeting. (B) In any circumstances where the Employee is describing the securities of XStream to a third party, the Employee shall disclose to such person any compensation received from XStream to the extent required under any applicable laws, including, without limitation, Section 17(b) of the Securities Act. (C) Rendering his services, the Employee shall not disclose to any third party any confidential non-public information furnished by XStream or otherwise obtained by it with respect to XStream, except on a need to know basis, and in such case, subject to appropriate assurances that such information shall not be used, directly or indirectly, in any manner that would violate state or federal prohibitions on insider trading of Xstream's securities. (D) The Employee shall not take any action which would in any way adversely affect the reputation, standing or prospects of XStream or which would cause XStream to be in violation of applicable laws. Article Three ------------- Compensation ------------ 3.1 Compensation. - ----------------- As consideration for the Employee's services to XStream the Employee shall be entitled to the following compensation: The Employee's salary during the first year of this agreement shall be $85,000 (the Base Salary). In addition to the Base Salary, the Employee shall be entitled to receive such bonuses as may be determined by XStream from time to time during the term of this agreement. The Base Salary shall be payable in accordance with the Xstream's customary payroll practices and procedures and shall be prorated for any partial year during the Term. THE EMPLOYEE AS A CONDITION OF ENTERING INTO THIS NEW AGREEMENT WAIVES ALL RIGHTS TO ANY STOCK OPTIONS WHICH HAVE BEEN VESTED OR WERE PREVIOUSLY GRANTED. 3.2 Benefits - ------------ (A) The Employee shall be entitled to any benefits generally made available to all other employees including without limitation medical, disability and life insurance plans and programs established by XStream subject however to any eligibility requirements and other provisions of such plans. The Employee shall also be entitled to receive such fringe benefits as may be generally provided by XStream from time to time to its employees, in accordance with the policies of XStream in office from time to time. (B) The Employee shall be entitled to four (4) weeks paid vacation annually, to be take at such time(s) as shall not, in the reasonable judgment of XStream's Board of Directors, interfere with the fulfillment of the Employee's duties under this Agreement. The Employee shall be entitled to as many holidays, sick days and personal days as are generally provided from time to time to XStream's employees in accordance with XStream's policies in effect from time to time. (C) The Employee shall be entitled to receive an automobile allowance in an amount of $500 per month. In addition, the Company shall pay or reimburse the Employee for all approved travel, entertainment, and other expenses incurred by him in connection with the performance of his duties hereunder in accordance with the policies and procedures established by XStream. 3.3 Indemnification. - -------------------- XStream will defend, indemnify and hold the Employee harmless from all liabilities, suits, judgments, fines, penalties or disabilities, including expenses associated directly, therewith (e.g. legal fees, court costs, investigative costs, witness fees, etc.) resulting from any reasonable actions taken by him in good faith on behalf of XStream, its affiliates or for other persons or entities at the request of the board of directors of XStream, to the fullest extent legally permitted, and in conjunction therewith, shall assure that all required expenditures are made in a manner making it unnecessary for the Employee to incur any out of pocket expenses; provided, however, that the Employee permits the majority stockholders of XStream to select and supervise all personnel involved in such defense and that the Employee waive any conflicts of interest that such personnel may have as a result of also representing XStream, its stockholders or other personnel and agrees to hold them harmless from any matters involving such representation, except such as involve fraud or bad faith. Article Four ------------ Special Covenants ----------------- 4.1 Confidentiality, Non-Circumvention and Non-Competition. - ----------------------------------------------------------- During the term of this Agreement, all renewals thereof and for a period of two years after its termination, the Employee hereby irrevocably agrees to be bound by the following restrictions, which constitute a material inducement for Xstream's entry into this Agreement: (A) Because the Employee will be developing for XStream, making use of, acquiring and/or adding to, confidential information of special and unique nature and value relating to such matters as XStream's trade secrets, systems, procedures, manuals, confidential reports, personnel resources, strategic and tactical plans, advisors, clients, investors and funders; as material inducement to the entry into this Agreement by XStream, the Employee hereby covenants and agrees not to personally use, divulge or disclose, for any purpose whatsoever, directly or indirectly, any of such confidential information during the term of this Agreement, any renewals thereof, and for a period of two years after its termination. (B) The Employee hereby covenants and agrees to be bound as a fiduciary of XStream, as if the Employee were a partner in a partnership bound by the partnership opportunities doctrine, as such concept has been judicially and legislatively developed in the State of Florida, and consequently, without the prior written consent of XStream, on a specific, case by case basis, the Employee shall not, among other things, directly or indirectly: (1) Engage in any activities, whether or not for profit, competitive with Xstream's business. (2) Solicit or accept any person providing services to XStream, whether as an employee, consultant or independent contractor, for employment or provision of services. (3) Induce any client or customer of XStream to cease doing business with XStream or to engage in business with any person engaged in business activities that compete with Xstream's business. (4) Divert any business opportunity within the general scope of Xstream's business and business capacity, to any other person or entity. 4.2 Special Remedies. - --------------------- In view of the irreparable harm and damage which would undoubtedly occur to XStream as a result of a breach by the Employee of the covenants or agreements contained in this Article Four, and in view of the lack of an adequate remedy at law to protect XStream's interests, the Employee hereby covenants and agrees that XStream shall have the following additional rights and remedies in the event of a breach hereof: (A) In addition to and not in limitation of any other rights, remedies or damages available to XStream, whether at law or in equity, it shall be entitled to a permanent injunction in order to prevent or to restrain any such breach by the Employee, or by the Employee's partners, agents, representatives, servants, employers, employees, affiliates and/or any and all persons directly or indirectly acting for or with him and the Employee hereby consents to the issuance of such a permanent injunction; and (B) Because it is impossible to ascertain or estimate the entire or exact cost, damage or injury which XStream may sustain prior to the effective enforcement of such injunction, the Employee hereby covenants and agrees to pay over to XStream, in the event the employee violates the covenants and agreements contained in Section 4.2 hereof, the greater of: (1) Any payment or compensation of any kind received by the Employee or by persons affiliated with or acting for or with the Employee, because of such violation before the issuance of such injunction, or (2) The sum of Ten Thousand ($10,000.00) Dollars per violation, which sum shall be liquidated damages, and not a penalty, for the injuries suffered by XStream as a result of such violation, the Parties hereto agreeing that such liquidated damages are not intended as the exclusive remedy available to XStream for any breach of the covenants and agreements contained in this Article Four, prior to the issuance of such injunction, the Parties recognizing that the only adequate remedy to protect XStream from the injury caused by such breaches would be injunctive relief. 4.3 Cumulative Remedies. - ------------------------ The Employee hereby irrevocably agrees that the remedies described in Section 4.2 shall be in addition to, and not in limitation of, any of the rights or remedies to which XStream is or may be entitled to, whether at law or in equity, under or pursuant to this Agreement. 4.4 Acknowledgment of Reasonableness. - ------------------------------------- (A) The Employee hereby represents, warrants and acknowledges that having carefully read and considered the provisions of this Article Four, the restrictions set forth herein are fair and reasonable and are reasonably required for the protection of the interests of XStream, its officers, directors and other employees; consequently, in the event that any of the above-described restrictions shall be held unenforceable by any court of competent jurisdiction, the Employee hereby covenants, agrees and directs such court to substitute a reasonable judicially enforceable limitation in place of any limitation deemed unenforceable and, the Employee hereby covenants and agrees that if so modified, the covenants contained in this Article Four shall be as fully enforceable as if they had been set forth herein directly by the Parties. (B) In determining the nature of this limitation, the Employee hereby acknowledges, covenants and agrees that it is the intent of the Parties that a court adjudicating a dispute arising hereunder recognize that the Parties desire that these covenants not to circumvent, disclose or compete be imposed and maintained to the greatest extent possible. 4.5 Unauthorized Acts. - ---------------------- The Employee hereby covenants and agrees not do any act or incur any obligation on behalf of XStream except as authorized by its board of directors. 4.6 Covenant not to Disparage - ----------------------------- The Employee hereby irrevocably covenants and agrees that during the term of this Agreement and after its termination, he will refrain from making any remarks that could be construed by anyone, under any circumstances, as disparaging, directly or indirectly, specifically, through innuendo or by inference, whether or not true, about XStream, its constituent members, or their officers, directors, stockholders, employees, agent or affiliates, whether related to the business of XStream, to other business or financial matters or to personal matters. Article Five ------------ Miscellaneous ------------- 5.1 Notices. - ------------ (A) (1) All notices, demands or other communications hereunder shall be in writing, and unless otherwise provided, shall be deemed to have been duly given on the first business day after mailing by registered or certified mail, return receipt requested, postage prepaid, addressed as follows: To the Employee: Barry Willson 5330, Pine Tree Road Pompano Beach, FL 33067 To XStream: XStream Beverage Group, Inc. One Park Place, 621 N.W. 53rd Street Suite 145 Boca Raton, Florida 33487 (2) Copies of notices will also be provided to such other address or to such other person as any Party shall designate to the other for such purpose in the manner hereinafter set forth. 5.2 Amendment. - -------------- (A) No modification, waiver, amendment, discharge or change of this Agreement shall be valid unless the same is in writing and signed by the Party against which the enforcement of said modification, waiver, amendment, discharge or change is sought. (B) This Agreement may not be modified without the consent of a majority in interest of Xstream's Board of Directors. . 5.3 Merger. (A) This instrument contains all of the understandings and agreements of the Parties with respect to the subject matter discussed herein. (B) All prior agreements whether written or oral, are merged herein and shall be of no force or effect. 5.4 Survival. - ------------- The several representations, warranties and covenants of the Parties contained herein shall survive the execution hereof and shall be effective regardless of any investigation that may have been made or may be made by or on behalf of any Party. 5.5 Severability. - ----------------- If any provision or any portion of any provision of this Agreement, or the application of such provision or any portion thereof to any person or circumstance shall be held invalid or unenforceable, the remaining portions of such provision and the remaining provisions of this Agreement or the application of such provision or portion of such provision as is held invalid or unenforceable to persons or circumstances other than those to which it is held invalid or unenforceable, shall not be effected thereby. 5.6 Governing Law and Venue. - ---------------------------- This Agreement shall be construed in accordance with the laws of the State of Florida but any proceeding arising between the Parties in any matter pertaining or related to this Agreement shall, to the extent permitted by law, be held in Broward County, Florida. 5.7 Litigation. - --------------- (A) In any action between the Parties to enforce any of the terms of this Agreement or any other matter arising from this Agreement, the prevailing Party shall be entitled to recover its costs and expenses, including reasonable attorneys' fees up to and including all negotiations, trials and appeals, whether or not litigation is initiated. (B) In the event of any dispute arising under this Agreement, or the negotiation thereof or inducements to enter into the Agreement, the dispute shall, at the request of any Party, be exclusively resolved through the following procedures: (1) (A) First, the issue shall be submitted to mediation before a mediation service in Broward County, Florida. (B) The mediation efforts shall be concluded within ten business days after their initiation unless the Parties unanimously agree to an extended mediation period. (2) In the event that mediation does not lead to a resolution of the dispute then at the request of any Party, the Parties shall submit the dispute to binding arbitration before an arbitration service located in Broward County, Florida. (3) (A) Expenses of mediation shall be borne by XStream, if successful. (B) Expenses of mediation, if unsuccessful and of arbitration shall be borne by the Party or Parties against whom the arbitration decision is rendered. (C) If the terms of the arbitration award does not establish a prevailing Party, then the expenses of unsuccessful mediation and arbitration shall be borne equally by the Parties. 5.8 Benefit of Agreement. - ------------------------- (A) This Agreement may not be assigned by the Employee without the prior written consent of XStream. (B) Subject to the restrictions on transferability and assignment contained herein, the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the Parties, their successors, assigns, personal representative, estate, heirs and legatees. 5.9 Captions. - ------------- The captions in this Agreement are for convenience and reference only and in no way define, describe, extend or limit the scope of this Agreement or the intent of any provisions hereof. 5.10 Number and Gender. - ----------------------- All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural, as the identity of the Party or Parties, or their personal representatives, successors and assigns may require. 5.11 Further Assurances. - ------------------------ The Parties hereby agree to do, execute, acknowledge and deliver or cause to be done, executed or acknowledged or delivered and to perform all such acts and deliver all such deeds, assignments, transfers, conveyances, powers of attorney, assurances, recipes, records and other documents, as may, from time to time, be required herein to effect the intent and purposes of this Agreement. 5.12 Status. - ------------ Nothing in this Agreement shall be construed or shall constitute a partnership, joint venture, agency, or lessor-lessee relationship; but, rather, the relationship established hereby is that of employer-employee in XStream. 5.13 Counterparts. - ------------------ (A) This Agreement may be executed in any number of counterparts. (B) Execution by exchange of facsimile transmission shall be deemed legally sufficient to bind the signatory; however, the Parties shall, for aesthetic purposes, prepare a fully executed original version of this Agreement, which shall be the document filed with the Securities and Exchange Commission. In Witness Whereof, the Parties have executed this Agreement, effective as of the last date set forth below. Signed, Sealed & Delivered In Our Presence The Employee /s/Barry Willson - -------------------------- Barry Willson Dated: June 4, 2003 XStream Beverage Group, Inc. A Nevada corporation. /s/Theodore Farnsworth - -------------------------- BY: Theodore Farnsworth Chairman of the Board of Directors (CORPORATE SEAL) Attest: ---------------------- Dated: EX-10.5 5 amendedemploy-pearring.txt AMENDED EMPLOYMENT - PEARRING Exhibit 10.5 ------------ AMENDED EMPLOYMENT AGREEMENT THIS AMENDED EMPLOYMENT AGREEMENT (THE "AGREEMENT") IS ENTERED INTO BY AND AMONG JEROME PEARRING (THE EMPLOYEE") AND XSTREAM BEVERAGE GROUP, INC., A NEVADA CORPORATION ("XSTREAM") XSTREAM AND THE EMPLOYEE BEING SOMETIMES HEREINAFTER COLLECTIVELY TO AS THE "PARTIES" OR GENERICALLY AS A "PARTY". NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements hereby exchanged, as well as of the sum of Ten ($10.00) Dollars and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows: Witnesseth: ----------- Article One ----------- Term, Renewals, Earlier Termination ----------------------------------- 1.1 Term. - --------- Subject to the provisions set forth herein, the term of the Employee's employment hereunder shall be deemed to have commenced as of June 1, 2003 and shall continue until December 31, 2006. 1.2 Renewals. - ------------- (a) This Agreement shall be renewed automatically, after expiration of the original term, on a continuing annual basis, unless the Party wishing not to renew this Agreement provides the other Party with written notice of its election not to renew ("Termination Election Notice") on or before the 30th day prior to termination of the then current term. (b) In the event that in conjunction with a renewal of this Agreement, a Party desires a modification of the terms of this Agreement that are not of general application (e.g., the provisions pertaining to salary, commissions, etc.), then: (1) Such Party shall provide the other with a written notice specifying the requested modifications (the "Modification Request Notice) on or before the 45th day prior to termination of the then current term which; (2) If the modifications specified in the Modifications Request Notice are accepted in writing by the other Party prior to expiration of the then current term, the Modifications Request Notice shall be deemed a written amendment to this Agreement, effective as of the first day of the new renewal term; (3) If the Party receiving the Modifications Request Notice finds the proposed modifications unacceptable, it may initiate negotiations to reach compromise modifications with the Party providing the Modifications Request Notice, which must be concluded and reflected in a written amendment to this Agreement prior to the end of the then current term, failing which, the provisions of Section 1.2(B)(4) will be deemed in effect; (4) If the modifications specified in the Modifications Request Notice are not accepted in writing by the other Party prior to expiration of the then current term, the Modifications Request Notice shall be deemed a Notice of Termination and this Agreement will expire effective as of the close of business on the last day of the then current term. 1.3 Earlier Termination. - ------------------------ XStream shall have the right to terminate this Agreement prior to the expiration of its Term or of any renewals thereof: (a) For Cause: (1) XStream may terminate the Employee's employment under this Agreement at any time for cause. (2) Such termination shall be evidenced by written notice thereof to the Employee, which notice shall specify the cause for termination. (3) For purposes hereof, the term "cause" shall mean: (A) The inability of the Employee, through sickness or other incapacity, to discharge his duties under this Agreement for 90 or more consecutive days or for a XStream of 180 or more days out of a period of 270 days; (B) The failure of the Employee to abide by the directions of Xstream'ss board of directors; (C) Dishonesty, theft; insubordination or conviction of a crime; (D) Serial default in the performance of the Employee's obligations, services or duties required under this Agreement (other than due to illness) or material breach of any provision of this Agreement, which default or breach has not been completely remedied within five days after written notice of such default or breach. (b) Deterioration or Discontinuance of Business: (1) In the event that XStream discontinues operating its business, this Agreement shall terminate as of the last day of the month on which it ceases operation with the same force and effect as if such last day of the month were originally set as the termination date hereof; provided, however, that a reorganization or merger of XStream shall not be deemed a termination of its business. (c) Death: This Agreement shall terminate immediately on the death of the Employee; however, all accrued compensation at such time shall be promptly paid to the Employee's estate. 1.4 Severance Payments and Alternatives to Termination - ------------------------------------------------------ In the event this Agreement is terminated for reasons other than for cause as described in Section 1.3(a)(3)(b) or (c) above, the Employee shall be entitled to receive: (A) All salaries and reimbursements earned through the date of termination; (B) An amount equal to the greater of 200% of the Employee's then prevailing salary or the remaining compensation due under this Agreement whichever is less; (C) Continued participation in those medical, life and disability insurance benefits, if any, which are provided to the Employee as of the last date of employment and continue for a period of one year following the last date of employment with the XStream; (D) In the event of a change in control (as defined below), Employee shall have the option at any time after the date that the change in control occurs to terminate his employment. Under such a change in control termination, the Employee will receive from XStream compensation in the amount equal to 2.99 times the Base Salary, less any Base Salary paid to him from the date of the change in control to the date of termination. The Employee shall have the option to receive this change in control payment in (i) equal installments in the same amount and at the same periodic intervals as if Employee had remained employed by XStream or (ii) in a single lump sum payment. A Change in Control shall mean the occurrence of any event resulting in the current control shareholders individually or collectively beneficially own less than 50% of the then outstanding common stock. 1.5 Final Settlement. - --------------------- Upon termination of this Agreement the Employee or the Employee's representative shall execute and deliver to XStream on a form prepared by XStream, a release of all claims except such claims as may have been submitted pursuant to the terms of this Agreement and which remain unpaid, and, shall forthwith tender to XStream all records, manuals and written procedures, as may be desired by it for the continued conduct of its business. Article Two ----------- Scope of Employment ------------------- 2.1 Retention. - -------------- XStream hereby hires the Employee and the Employee hereby accepts such employment, in accordance with the terms, provisions and conditions of this Agreement. 2.2 General Description of Duties. - ---------------------------------- (A) The Employee shall serve as the President and Chief Operating Officer of Xstream. (B) The Employee shall oversee all operational issues related to the ongoing business needs of XStream. The Employee shall at all times be accountable to XStream's Board of Directors. The Employee is expected to work a minimum of 40 hours per week and devote his full time and attention to the operations of XStream. However, nothing shall prohibit the Employee from engaging in charitable and civic activities and managing his personal passive investments, provided that such passive investments are not in a company which competes in a business similar to that of XStream's business. (C) The Employee hereby represents and warrants to XStream that he is subject to no legal, self regulatory organization (e.g., National Association of Securities Dealers, Inc.'s bylaws) or regulatory impediments to the provision of the services called for by this Agreement, or to receipt of the compensation called for under this Agreement or any supplements thereto; and, the Employee hereby irrevocably covenants and agrees to immediately bring to the attention of XStream any facts required to make the foregoing representation and warranty continuingly accurate throughout the term of this Agreement, or any supplements or extensions thereof. 2.3 Exclusivity. - ---------------- (a) Unless specifically authorized by this Agreement or is otherwise authorized by XStream's board of directors, on a case by case basis, in writing, all of the Employee's business time shall be devoted exclusively to the affairs of XStream. (b) Without limiting the generality of the foregoing, the Employee covenants to perform the employment duties called for hereby in good faith, devoting substantially all business time, energies and abilities thereto and will not engage in any other business or commercial activities for any person or entity without the prior written consent of XStream's Board of Directors. 2.4 Limitations on Services - --------------------------- (a) The Parties recognize that certain responsibilities and obligations are imposed by federal and state securities laws and by the applicable rules and regulations of stock exchanges, the National Association of Securities Dealers, Inc., in-house "due diligence" or "compliance" departments of Licensed Securities Firms, etc.; accordingly, the Employee agrees that he will not: (1) Release any financial or other material information or data about XStream without the prior written consent and approval of XStream's General Counsel or Securities Counsel; (2) Conduct any meetings with financial analysts without informing XStream's General Counsel and board of directors in advance of the proposed meeting and the format or agenda of such meeting. (b) In any circumstances where the Employee is describing the securities of XStream to a third party, the Employee shall disclose to such person any compensation received from XStream to the extent required under any applicable laws, including, without limitation, Section 17(b) of the Securities Act. (c) In rendering his services, the Employee shall not disclose to any third party any confidential non-public information furnished by XStream or otherwise obtained by it with respect to XStream, except on a need to know basis, and in such case, subject to appropriate assurances that such information shall not be used, directly or indirectly, in any manner that would violate state or federal prohibitions on insider trading of XStream's securities. (d) The Employee shall not take any action which would in any way adversely affect the reputation, standing or prospects of XStream or which would cause XStream to be in violation of applicable laws. ARTICLE THREE ------------- COMPENSATION ------------ 3.1 Compensation. - ----------------- As consideration for the Employee's services to XStream the Employee shall be entitled to the following compensation: The Employee's salary during the first year of this agreement shall be $85,000 (the "Base Salary). In addition to the Base Salary, the Employee shall be entitled to receive such bonuses as may be determined by XStream from time to time during the term of this agreement. The Base Salary shall be payable in accordance with the XStream's customary payroll practices and procedures and shall be prorated for any partial year during the Term. THE EMPLOYEE AS A CONDITION OF ENTERING INTO THIS NEW AGREEMENT WAIVES ALL RIGHTS TO ANY STOCK OPTIONS WHICH HAVE BEEN VESTED OR WERE PREVIOUSLY GRANTED. 3.2 Benefits. - ------------- (a) The Employee shall be entitled to any benefits generally made available to all other employees including without limitation medical, disability and life insurance plans and programs established by XStream subject however to any eligibility requirements and other provisions of such plans. The Employee shall also be entitled to receive such fringe benefits as may be generally provided by XStream from time to time to its employees, in accordance with the policies of XStream in office from time to time. (b) The Employee shall be entitled to four (4) weeks paid vacation annually, to be take at such time(s) as shall not, in the reasonable judgment of XStream's Board of Directors, interfere with the fulfillment of the Employee's duties under this Agreement. The Employee shall be entitled to as many holidays, sick days and personal days as are generally provided from time to time to XStream's employees in accordance with XStream's policies in effect from time to time. (c) The Employee shall be entitled to receive an automobile allowance in an amount of $500 per month. In addition, the Company shall pay or reimburse the Employee for all approved travel, entertainment, and other expenses incurred by him in connection with the performance of his duties hereunder in accordance with the policies and procedures established by XStream. 3.3 Indemnification. - -------------------- XStream will defend, indemnify and hold the Employee harmless from all liabilities, suits, judgments, fines, penalties or disabilities, including expenses associated directly, therewith (e.g. legal fees, court costs, investigative costs, witness fees, etc.) resulting from any reasonable actions taken by him in good faith on behalf of XStream, its affiliates or for other persons or entities at the request of the board of directors of XStream, to the fullest extent legally permitted, and in conjunction therewith, shall assure that all required expenditures are made in a manner making it unnecessary for the Employee to incur any out of pocket expenses; provided, however, that the Employee permits the majority stockholders of XStream to select and supervise all personnel involved in such defense and that the Employee waive any conflicts of interest that such personnel may have as a result of also representing XStream, its stockholders or other personnel and agrees to hold them harmless from any matters involving such representation, except such as involve fraud or bad faith. Article Four ------------ Special Covenants ----------------- 4.1 Confidentiality, Non-Circumvention and Non-Competition. - ----------------------------------------------------------- During the term of this Agreement, all renewals thereof and for a period of two years after its termination, the Employee hereby irrevocably agrees to be bound by the following restrictions, which constitute a material inducement for XStream's entry into this Agreement: (a) Because the Employee will be developing for XStream, making use of, acquiring and/or adding to, confidential information of special and unique nature and value relating to such matters as XStream's trade secrets, systems, procedures, manuals, confidential reports, personnel resources, strategic and tactical plans, advisors, clients, investors and funders; as material inducement to the entry into this Agreement by XStream, the Employee hereby covenants and agrees not to personally use, divulge or disclose, for any purpose whatsoever, directly or indirectly, any of such confidential information during the term of this Agreement, any renewals thereof, and for a period of two years after its termination. (b) The Employee hereby covenants and agrees to be bound as a fiduciary of XStream, as if the Employee were a partner in a partnership bound by the partnership opportunities doctrine, as such concept has been judicially and legislatively developed in the State of Florida, and consequently, without the prior written consent of XStream, on a specific, case by case basis, the Employee shall not, among other things, directly or indirectly: (1) Engage in any activities, whether or not for profit, competitive with XStream's business. (2) Solicit or accept any person providing services to XStream, whether as an employee, consultant or independent contractor, for employment or provision of services. (3) Induce any client or customer of XStream to cease doing business with XStream or to engage in business with any person engaged in business activities that compete with XStream's business. (4) Divert any business opportunity within the general scope of XStream's business and business capacity, to any other person or entity. 4.2 Special Remedies. - --------------------- In view of the irreparable harm and damage which would undoubtedly occur to XStream as a result of a breach by the Employee of the covenants or agreements contained in this Article Four, and in view of the lack of an adequate remedy at law to protect XStream's interests, the Employee hereby covenants and agrees that XStream shall have the following additional rights and remedies in the event of a breach hereof: (a) In addition to and not in limitation of any other rights, remedies or damages available to XStream, whether at law or in equity, it shall be entitled to a permanent injunction in order to prevent or to restrain any such breach by the Employee, or by the Employee's partners, agents, representatives, servants, employers, employees, affiliates and/or any and all persons directly or indirectly acting for or with him and the Employee hereby consents to the issuance of such a permanent injunction; and (b) Because it is impossible to ascertain or estimate the entire or exact cost, damage or injury which XStream may sustain prior to the effective enforcement of such injunction, the Employee hereby covenants and agrees to pay over to XStream, in the event the employee violates the covenants and agreements contained in Section 4.2 hereof, the greater of: (1) Any payment or compensation of any kind received by the Employee or by persons affiliated with or acting for or with the Employee, because of such violation before the issuance of such injunction, or (2) The sum of Ten Thousand ($10,000.00) Dollars per violation, which sum shall be liquidated damages, and not a penalty, for the injuries suffered by XStream as a result of such violation, the Parties hereto agreeing that such liquidated damages are not intended as the exclusive remedy available to XStream for any breach of the covenants and agreements contained in this Article Four, prior to the issuance of such injunction, the Parties recognizing that the only adequate remedy to protect XStream from the injury caused by such breaches would be injunctive relief. 4.3 Cumulative Remedies. - ------------------------ The Employee hereby irrevocably agrees that the remedies described in Section 4.2 shall be in addition to, and not in limitation of, any of the rights or remedies to which XStream is or may be entitled to, whether at law or in equity, under or pursuant to this Agreement. 4.4 Acknowledgment of Reasonableness. - ------------------------------------- (a) The Employee hereby represents, warrants and acknowledges that having carefully read and considered the provisions of this Article Four, the restrictions set forth herein are fair and reasonable and are reasonably required for the protection of the interests of XStream, its officers, directors and other employees; consequently, in the event that any of the above-described restrictions shall be held unenforceable by any court of competent jurisdiction, the Employee hereby covenants, agrees and directs such court to substitute a reasonable judicially enforceable limitation in place of any limitation deemed unenforceable and, the Employee hereby covenants and agrees that if so modified, the covenants contained in this Article Four shall be as fully enforceable as if they had been set forth herein directly by the Parties. (b) In determining the nature of this limitation, the Employee hereby acknowledges, covenants and agrees that it is the intent of the Parties that a court adjudicating a dispute arising hereunder recognize that the Parties desire that these covenants not to circumvent, disclose or compete be imposed and maintained to the greatest extent possible. 4.5 Unauthorized Acts. - ---------------------- The Employee hereby covenants and agrees not do any act or incur any obligation on behalf of XStream except as authorized by its board of directors. 4.6 Covenant not to Disparage - ----------------------------- The Employee hereby irrevocably covenants and agrees that during the term of this Agreement and after its termination, he will refrain from making any remarks that could be construed by anyone, under any circumstances, as disparaging, directly or indirectly, specifically, through innuendo or by inference, whether or not true, about XStream, its constituent members, or their officers, directors, stockholders, employees, agent or affiliates, whether related to the business of XStream, to other business or financial matters or to personal matters. ARTICLE FIVE ------------ MISCELLANEOUS ------------- 5.1 Notices. - ------------ (a) (1) All notices, demands or other communications hereunder shall be in writing, and unless otherwise provided, shall be deemed to have been duly given on the first business day after mailing by registered or certified mail, return receipt requested, postage prepaid, addressed as follows: To the Employee: Jerome Pearring 3151 SW 133rd Terr. Davie, Florida 33330 To XStream: XStream Beverage Group, Inc. One Park Place, 621, N.W. 53rd Street. Suite 145 Boca Raton, Florida 33487 (2) Copies of notices will also be provided to such other address or to such other person as any Party shall designate to the other for such purpose in the manner hereinafter set forth. 5.2 Amendment. - -------------- (a) No modification, waiver, amendment, discharge or change of this Agreement shall be valid unless the same is in writing and signed by the Party against which the enforcement of said modification, waiver, amendment, discharge or change is sought. (b) This Agreement may not be modified without the consent of a majority in interest of XStream's Board of Directors. 5.3 Merger. - ----------- (a) This instrument contains all of the understandings and agreements of the Parties with respect to the subject matter discussed herein. (b) All prior agreements whether written or oral, are merged herein and shall be of no force or effect. 5.4 Survival. - ------------- The several representations, warranties and covenants of the Parties contained herein shall survive the execution hereof and shall be effective regardless of any investigation that may have been made or may be made by or on behalf of any Party. 5.5 Severability. - ----------------- If any provision or any portion of any provision of this Agreement, or the application of such provision or any portion thereof to any person or circumstance shall be held invalid or unenforceable, the remaining portions of such provision and the remaining provisions of this Agreement or the application of such provision or portion of such provision as is held invalid or unenforceable to persons or circumstances other than those to which it is held invalid or unenforceable, shall not be effected thereby. 5.6 Governing Law and Venue. - ---------------------------- This Agreement shall be construed in accordance with the laws of the State of Florida but any proceeding arising between the Parties in any matter pertaining or related to this Agreement shall, to the extent permitted by law, be held in Broward County, Florida. 5.7 Litigation. - --------------- (a) In any action between the Parties to enforce any of the terms of this Agreement or any other matter arising from this Agreement, the prevailing Party shall be entitled to recover its costs and expenses, including reasonable attorneys' fees up to and including all negotiations, trials and appeals, whether or not litigation is initiated. (b) In the event of any dispute arising under this Agreement, or the negotiation thereof or inducements to enter into the Agreement, the dispute shall, at the request of any Party, be exclusively resolved through the following procedures: (1) (A) First, the issue shall be submitted to mediation before a mediation service in Broward County, Florida. (B) The mediation efforts shall be concluded within ten business days after their initiation unless the Parties unanimously agree to an extended mediation period. (2) In the event that mediation does not lead to a resolution of the dispute then at the request of any Party, the Parties shall submit the dispute to binding arbitration before an arbitration service located in Broward County, Florida. (3) (A) Expenses of mediation shall be borne by XStream, if successful. (B) Expenses of mediation, if unsuccessful and of arbitration shall be borne by the Party or Parties against whom the arbitration decision is rendered. (C) If the terms of the arbitration award does not establish a prevailing Party, then the expenses of unsuccessful mediation and arbitration shall be borne equally by the Parties. 5.8 Benefit of Agreement. - ------------------------- (a) This Agreement may not be assigned by the Employee without the prior written consent of XStream. (b) Subject to the restrictions on transferability and assignment contained herein, the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the Parties, their successors, assigns, personal representative, estate, heirs and legatees. 5.9 Captions. - ------------- The captions in this Agreement are for convenience and reference only and in no way define, describe, extend or limit the scope of this Agreement or the intent of any provisions hereof. 5.10 Number and Gender. - ----------------------- All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural, as the identity of the Party or Parties, or their personal representatives, successors and assigns may require. 5.11 Further Assurances. - ------------------------ The Parties hereby agree to do, execute, acknowledge and deliver or cause to be done, executed or acknowledged or delivered and to perform all such acts and deliver all such deeds, assignments, transfers, conveyances, powers of attorney, assurances, recipes, records and other documents, as may, from time to time, be required herein to effect the intent and purposes of this Agreement. 5.12 Status. - ------------ Nothing in this Agreement shall be construed or shall constitute a partnership, joint venture, agency, or lessor-lessee relationship; but, rather, the relationship established hereby is that of employer-employee in XStream. 5.13 Counterparts. - ------------------ (a) This Agreement may be executed in any number of counterparts. (b) Execution by exchange of facsimile transmission shall be deemed legally sufficient to bind the signatory; however, the Parties shall, for aesthetic purposes, prepare a fully executed original version of this Agreement, which shall be the document filed with the Securities and Exchange Commission. In Witness Whereof, the Parties have executed this Agreement, effective as of the last date set forth below. Signed, Sealed & Delivered In Our Presence The Employee /s/Jerome Pearring - -------------------------- Jerome Pearring Dated: June 3, 2003 XStream Beverage Group, Inc. A Nevada corporation. /s/Theodore Farnsworth - -------------------------- BY: Theodore Farnsworth Chairman of the Board of Directors (CORPORATE SEAL) Attest: ------------------------- Dated: April 2nd 2003 EX-10.6 6 amendedemploy-farnswoth.txt AMENDED EMPLOYMENT - FARNSWORTH Exhibit 10.6 ------------ AMENDED EMPLOYMENT AGREEMENT THIS AMENDED EMPLOYMENT AGREEMENT (THE "AGREEMENT") IS ENTERED INTO BY AND AMONG THEODORE FARNSWORTH (THE EMPLOYEE") AND XSTREAM BEVERAGE GROUP, INC., A NEVADA CORPORATION (XSTREAM) XSTREAM AND THE EMPLOYEE BEING SOMETIMES HEREINAFTER COLLECTIVELY TO AS THE "PARTIES" OR GENERICALLY AS A "PARTY". NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements hereby exchanged, as well as of the sum of Ten ($10.00) Dollars and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows: Witnesseth: ----------- ARTICLE ONE ----------- TERM, RENEWALS, EARLIER TERMINATION ----------------------------------- 1.1 Term. - --------- Subject to the provisions set forth herein, the term of the Employee's employment hereunder shall be deemed to have commenced as of June 1, 2003 and shall continue until December 31, 2006. 1.2 Renewals. - ------------- (a) This Agreement shall be renewed automatically, after expiration of the original term, on a continuing annual basis, unless the Party wishing not to renew this Agreement provides the other Party with written notice of its election not to renew ("Termination Election Notice") on or before the 30th day prior to termination of the then current term. (b) In the event that in conjunction with a renewal of this Agreement, a Party desires a modification of the terms of this Agreement that are not of general application (e.g., the provisions pertaining to salary, commissions, etc.), then: (1) Such Party shall provide the other with a written notice specifying the requested modifications (the Modification Request Notice) on or before the 45th day prior to termination of the then current term which; (2) If the modifications specified in the Modifications Request Notice are accepted in writing by the other Party prior to expiration of the then current term, the Modifications Request Notice shall be deemed a written amendment to this Agreement, effective as of the first day of the new renewal term; (3) If the Party receiving the Modifications Request Notice finds the proposed modifications unacceptable, it may initiate negotiations to reach compromise modifications with the Party providing the Modifications Request Notice, which must be concluded and reflected in a written amendment to this Agreement prior to the end of the then current term, failing which, the provisions of Section 1.2(B)(4) will be deemed in effect; (4) If the modifications specified in the Modifications Request Notice are not accepted in writing by the other Party prior to expiration of the then current term, the Modifications Request Notice shall be deemed a Notice of Termination and this Agreement will expire effective as of the close of business on the last day of the then current term. 1.3 Earlier Termination. - ------------------------ XStream shall have the right to terminate this Agreement prior to the expiration of its Term or of any renewals thereof: (a) For Cause: (1) XStream may terminate the Employee's employment under this Agreement at any time for cause. (2) termination shall be evidenced by written notice thereof to the Employee, which notice shall specify the cause for termination. (3) For purposes hereof, the term "cause" shall mean: (A) The inability of the Employee, through sickness or other incapacity, to discharge his duties under this Agreement for 90 or more consecutive days or for a XStream of 180 or more days out of a period of 270 days; (B) The failure of the Employee to abide by the directions of XStream's board of directors; (C) Dishonesty; theft; insubordination or conviction of a crime; (D) Material default in the performance of the Employee's obligations, services or duties required under this Agreement (other than due to illness) or material breach of any provision of this Agreement, which default or breach has not been completely remedied within five days after written notice of such default or breach. (b) Deterioration or Discontinuance of Business: (1) In the event that XStream discontinues operating its business, this Agreement shall terminate as of the last day of the month on which it ceases operation with the same force and effect as if such last day of the month were originally set as the termination date hereof; provided, however, that a reorganization or merger of XStream shall not be deemed a termination of its business. (c) Death: This Agreement shall terminate immediately on the death of the Employee; however, all accrued compensation at such time shall be promptly paid to the Employee'ss estate. 1.4 Severance Payments and Alternatives to Termination - ------------------------------------------------------ In the event this Agreement is terminated for reasons other than for cause as described in Section 1.3(a)(3)(b) or (c) above, the Employee shall be entitled to receive: (A) All salaries and reimbursements earned through the date of termination; (B) An amount equal to the greater of 200% of the Employee's then prevailing salary or the remaining compensation due under this Agreement whichever is less; (C) Continued participation in those medical, life and disability insurance benefits, if any, which are provided to the Employee as of the last date of employment and continue for a period of one year following the last date of employment with the XStream; (D) In the event of a change in control (as defined below), Employee shall have the option at any time after the date that the change in control occurs to terminate his employment. Under such a change in control termination, the Employee will receive from XStream compensation in the amount equal to 2.99 times the Base Salary, less any Base Salary paid to him from the date of the change in control to the date of termination. The Employee shall have the option to receive this change in control payment in (i) equal installments in the same amount and at the same periodic intervals as if Employee had remained employed by XStream or (ii) in a single lump sum payment. A Change in Control shall mean the occurrence of any event resulting in the current control shareholders individually or collectively beneficially own less than 50% of the then outstanding common stock. 1.5 Final Settlement. - --------------------- Upon termination of this Agreement the Employee or the Employee's representative shall execute and deliver to XStream on a form prepared by XStream, a release of all claims except such claims as may have been submitted pursuant to the terms of this Agreement and which remain unpaid, and, shall forthwith tender to XStream all records, manuals and written procedures, as may be desired by it for the continued conduct of its business. ARTICLE TWO ----------- SCOPE OF EMPLOYMENT ------------------- 2.1 Retention. - -------------- XStream hereby hires the Employee and the Employee hereby accepts such employment, in accordance with the terms, provisions and conditions of this Agreement. 2.2 General Description of Duties. - ---------------------------------- (A) The Employee shall serve as the Chairman of the Board of Xstream. (B) The Employee shall oversee all operational issues related to the ongoing business needs of XStream. The Employee shall at all times be accountable to XStream's Board of Directors. The Employee is expected to work a minimum of 40 hours per week and devote his full time and attention to the operations of XStream. However, nothing shall prohibit the Employee from engaging in charitable and civic activities and managing his personal passive investments, provided that such passive investments are not in a company which competes in a business similar to that of XStream's business. (C) The Employee hereby represents and warrants to XStream that he is subject to no legal, self regulatory organization (e.g., National Association of Securities Dealers, Inc.'s bylaws) or regulatory impediments to the provision of the services called for by this Agreement, or to receipt of the compensation called for under this Agreement or any supplements thereto; and, the Employee hereby irrevocably covenants and agrees to immediately bring to the attention of XStream any facts required to make the foregoing representation and warranty continuingly accurate throughout the term of this Agreement, or any supplements or extensions thereof. 2.3 Exclusivity. - ---------------- (a) Unless specifically authorized by this Agreement or is otherwise authorized by XStream's board of directors, on a case by case basis, in writing, all of the Employee's business time shall be devoted exclusively to the affairs of XStream. (b) Without limiting the generality of the foregoing, the Employee covenants to perform the employment duties called for hereby in good faith, devoting substantially all business time, energies and abilities thereto and will not engage in any other business or commercial activities for any person or entity without the prior written consent of XStream's Board of Directors. 2.4 Limitations on Services - --------------------------- (a) The Parties recognize that certain responsibilities and obligations are imposed by federal and state securities laws and by the applicable rules and regulations of stock exchanges, the National Association of Securities Dealers, Inc., in-house "due diligence" or "compliance" departments of Licensed Securities Firms, etc.; accordingly, the Employee agrees that he will not: (1) Release any financial or other material information or data about XStream without the prior written consent and approval of XStream's General Counsel or Securities Counsel; (2) Conduct any meetings with financial analysts without informing XStream's General Counsel and board of directors in advance of the proposed meeting and the format or agenda of such meeting. (b) In any circumstances where the Employee is describing the securities of XStream to a third party, the Employee shall disclose to such person any compensation received from XStream to the extent required under any applicable laws, including, without limitation, Section 17(b) of the Securities Act. (c) In rendering his services, the Employee shall not disclose to any third party any confidential non-public information furnished by XStream or otherwise obtained by it with respect to XStream, except on a need to know basis, and in such case, subject to appropriate assurances that such information shall not be used, directly or indirectly, in any manner that would violate state or federal prohibitions on insider trading of XStream's securities. (d) The Employee shall not take any action which would in any way adversely affect the reputation, standing or prospects of XStream or which would cause XStream to be in violation of applicable laws. ARTICLE THREE ------------- COMPENSATION ------------ 3.1 Compensation. - ----------------- As consideration for the Employee's services to XStream the Employee shall be entitled to the following compensation: The Employee's salary during the first year of this agreement shall be $110,000 (the "Base Salary). In addition to the Base Salary, the Employee shall be entitled to receive such bonuses as may be determined by XStream from time to time during the term of this agreement. The Base Salary shall be payable in accordance with the XStream's customary payroll practices and procedures and shall be prorated for any partial year during the Term. THE EMPLOYEE AS A CONDITION OF ENTERING INTO THIS NEW AGREEMENT WAIVES ALL RIGHTS TO ANY STOCK OPTIONS WHICH HAVE BEEN VESTED OR WERE PREVIOUSLY GRANTED. 3.2 Benefits. - ------------- (a) The Employee shall be entitled to any benefits generally made available to all other employees including without limitation medical, disability and life insurance plans and programs established by XStream subject however to any eligibility requirements and other provisions of such plans. The Employee shall also be entitled to receive such fringe benefits as may be generally provided by XStream from time to time to its employees, in accordance with the policies of XStream in office from time to time. (b) The Employee shall be entitled to four (4) weeks paid vacation annually, to be take at such time(s) as shall not, in the reasonable judgment of XStream"s Board of Directors, interfere with the fulfillment of the Employee's duties under this Agreement. The Employee shall be entitled to as many holidays, sick days and personal days as are generally provided from time to time to XStream's employees in accordance with XStream's policies in effect from time to time. (c) The Employee shall be entitled to receive an automobile allowance in an amount of $500 per month. In addition, the Company shall pay or reimburse the Employee for all approved travel, entertainment, and other expenses incurred by him in connection with the performance of his duties hereunder in accordance with the policies and procedures established by XStream. 3.3 Indemnification. - -------------------- XStream will defend, indemnify and hold the Employee harmless from all liabilities, suits, judgments, fines, penalties or disabilities, including expenses associated directly, therewith (e.g. legal fees, court costs, investigative costs, witness fees, etc.) resulting from any reasonable actions taken by him in good faith on behalf of XStream, its affiliates or for other persons or entities at the request of the board of directors of XStream, to the fullest extent legally permitted, and in conjunction therewith, shall assure that all required expenditures are made in a manner making it unnecessary for the Employee to incur any out of pocket expenses; provided, however, that the Employee permits the majority stockholders of XStream to select and supervise all personnel involved in such defense and that the Employee waive any conflicts of interest that such personnel may have as a result of also representing XStream, its stockholders or other personnel and agrees to hold them harmless from any matters involving such representation, except such as involve fraud or bad faith. ARTICLE FOUR ------------ SPECIAL COVENANTS ----------------- 4.1 Confidentiality, Non-Circumvention and Non-Competition. - ----------------------------------------------------------- During the term of this Agreement, all renewals thereof and for a period of two years after its termination, the Employee hereby irrevocably agrees to be bound by the following restrictions, which constitute a material inducement for XStream's entry into this Agreement: (a) Because the Employee will be developing for XStream, making use of, acquiring and/or adding to, confidential information of special and unique nature and value relating to such matters as XStream's trade secrets, systems, procedures, manuals, confidential reports, personnel resources, strategic and tactical plans, advisors, clients, investors and funders; as material inducement to the entry into this Agreement by XStream, the Employee hereby covenants and agrees not to personally use, divulge or disclose, for any purpose whatsoever, directly or indirectly, any of such confidential information during the term of this Agreement, any renewals thereof, and for a period of two years after its termination. (b) The Employee hereby covenants and agrees to be bound as a fiduciary of XStream, as if the Employee were a partner in a partnership bound by the partnership opportunities doctrine, as such concept has been judicially and legislatively developed in the State of Florida, and consequently, without the prior written consent of XStream, on a specific, case by case basis, the Employee shall not, among other things, directly or indirectly: (1) Engage in any activities, whether or not for profit, competitive with XStream's business. (2) Solicit or accept any person providing services to XStream, whether as an employee, consultant or independent contractor, for employment or provision of services. (3) Induce any client or customer of XStream to cease doing business with XStream or to engage in business with any person engaged in business activities that compete with Xstream's business. (4) Divert any business opportunity within the general scope of Xstream's business and business capacity, to any other person or entity. 4.2 Special Remedies. - --------------------- In view of the irreparable harm and damage which would undoubtedly occur to XStream as a result of a breach by the Employee of the covenants or agreements contained in this Article Four, and in view of the lack of an adequate remedy at law to protect XStream's interests, the Employee hereby covenants and agrees that XStream shall have the following additional rights and remedies in the event of a breach hereof: (a) In addition to and not in limitation of any other rights, remedies or damages available to XStream, whether at law or in equity, it shall be entitled to a permanent injunction in order to prevent or to restrain any such breach by the Employee, or by the Employee's partners, agents, representatives, servants, employers, employees, affiliates and/or any and all persons directly or indirectly acting for or with him and the Employee hereby consents to the issuance of such a permanent injunction; and (b) Because it is impossible to ascertain or estimate the entire or exact cost, damage or injury which XStream may sustain prior to the effective enforcement of such injunction, the Employee hereby covenants and agrees to pay over to XStream, in the event the employee violates the covenants and agreements contained in Section 4.2 hereof, the greater of: (1) Any payment or compensation of any kind received by the Employee or by persons affiliated with or acting for or with the Employee, because of such violation before the issuance of such injunction, or (2) Sum of Ten Thousand ($10,000.00) Dollars per violation, which sum shall be liquidated damages, and not a penalty, for the injuries suffered by XStream as a result of such violation, the Parties hereto agreeing that such liquidated damages are not intended as the exclusive remedy available to XStream for any breach of the covenants and agreements contained in this Article Four, prior to the issuance of such injunction, the Parties recognizing that the only adequate remedy to protect XStream from the injury caused by such breaches would be injunctive relief. 4.3 Cumulative Remedies.7 - ------------------------------ The Employee hereby irrevocably agrees that the remedies described in Section 4.2 shall be in addition to, and not in limitation of, any of the rights or remedies to which XStream is or may be entitled to, whether at law or in equity, under or pursuant to this Agreement. 4.4 Acknowledgment of Reasonableness. - ------------------------------------- (a) The Employee hereby represents, warrants and acknowledges that having carefully read and considered the provisions of this Article Four, the restrictions set forth herein are fair and reasonable and are reasonably required for the protection of the interests of XStream, its officers, directors and other employees; consequently, in the event that any of the above-described restrictions shall be held unenforceable by any court of competent jurisdiction, the Employee hereby covenants, agrees and directs such court to substitute a reasonable judicially enforceable limitation in place of any limitation deemed unenforceable and, the Employee hereby covenants and agrees that if so modified, the covenants contained in this Article Four shall be as fully enforceable as if they had been set forth herein directly by the Parties. (b) In determining the nature of this limitation, the Employee hereby acknowledges, covenants and agrees that it is the intent of the Parties that a court adjudicating a dispute arising hereunder recognize that the Parties desire that these covenants not to circumvent, disclose or compete be imposed and maintained to the greatest extent possible. 4.5 Unauthorized Acts. - ---------------------- The Employee hereby covenants and agrees not do any act or incur any obligation on behalf of XStream except as authorized by its board of directors. 4.6 Covenant not to Disparage. - ------------------------------ The Employee hereby irrevocably covenants and agrees that during the term of this Agreement and after its termination, he will refrain from making any remarks that could be construed by anyone, under any circumstances, as disparaging, directly or indirectly, specifically, through innuendo or by inference, whether or not true, about XStream, its constituent members, or their officers, directors, stockholders, employees, agent or affiliates, whether related to the business of XStream, to other business or financial matters or to personal matters. ARTICLE FIVE ------------ MISCELLANEOUS ------------- 5.1 Notices. - ------------ (a) (1) All notices, demands or other communications hereunder shall be in writing, and unless otherwise provided, shall be deemed to have been duly given on the first business day after mailing by registered or certified mail, return receipt requested, postage prepaid, addressed as follows: To the Employee: Theodore Farnsworth To XStream: XStream Beverage Group, Inc. One Park Place, 621, N.W. 53rd Street. Suite 145 Boca Raton, Florida 33487 (2) Copies of notices will also be provided to such other address or to such other person as any Party shall designate to the other for such purpose in the manner hereinafter set forth. 5.2 Amendment. - -------------- (a) No modification, waiver, amendment, discharge or change of this Agreement shall be valid unless the same is in writing and signed by the Party against which the enforcement of said modification, waiver, amendment, discharge or change is sought. (b) This Agreement may not be modified without the consent of a majority in interest of XStream's Board of Directors. 5.3 Merger. - ----------- (a) This instrument contains all of the understandings and agreements of the Parties with respect to the subject matter discussed herein. (b) All prior agreements whether written or oral, are merged herein and shall be of no force or effect. 5.4 Survival. - ------------- The several representations, warranties and covenants of the Parties contained herein shall survive the execution hereof and shall be effective regardless of any investigation that may have been made or may be made by or on behalf of any Party. 5.5 Severability. - ----------------- If any provision or any portion of any provision of this Agreement, or the application of such provision or any portion thereof to any person or circumstance shall be held invalid or unenforceable, the remaining portions of such provision and the remaining provisions of this Agreement or the application of such provision or portion of such provision as is held invalid or unenforceable to persons or circumstances other than those to which it is held invalid or unenforceable, shall not be effected thereby. 5.6 Governing Law and Venue. - ---------------------------- This Agreement shall be construed in accordance with the laws of the State of Florida but any proceeding arising between the Parties in any matter pertaining or related to this Agreement shall, to the extent permitted by law, be held in Broward County, Florida. 5.7 Litigation. - --------------- (a) In any action between the Parties to enforce any of the terms of this Agreement or any other matter arising from this Agreement, the prevailing Party shall be entitled to recover its costs and expenses, including reasonable attorneys' fees up to and including all negotiations, trials and appeals, whether or not litigation is initiated. (b) In the event of any dispute arising under this Agreement, or the negotiation thereof or inducements to enter into the Agreement, the dispute shall, at the request of any Party, be exclusively resolved through the following procedures: (1) (A) First, the issue shall be submitted to mediation before a mediation service in Broward County, Florida. (B) The mediation efforts shall be concluded within ten business days after their initiation unless the Parties unanimously agree to an extended mediation period. (2) In the event that mediation does not lead to a resolution of the dispute then at the request of any Party, the Parties shall submit the dispute to binding arbitration before an arbitration service located in Broward County, Florida. (3) (A) Expenses of mediation shall be borne by XStream, if successful. (B) Expenses of mediation, if unsuccessful and of arbitration shall be borne by the Party or Parties against whom the arbitration decision is rendered. (C) If the terms of the arbitration award does not establish a prevailing Party, then the expenses of unsuccessful mediation and arbitration shall be borne equally by the Parties. 5.8 Benefit of Agreement. - ------------------------- (a) This Agreement may not be assigned by the Employee without the prior written consent of XStream. (b) Subject to the restrictions on transferability and assignment contained herein, the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the Parties, their successors, assigns, personal representative, estate, heirs and legatees. 5.9 Captions. - ------------- The captions in this Agreement are for convenience and reference only and in no way define, describe, extend or limit the scope of this Agreement or the intent of any provisions hereof. 5.10 Number and Gender. - ----------------------- All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural, as the identity of the Party or Parties, or their personal representatives, successors and assigns may require. 5.11 Further Assurances. - ------------------------ The Parties hereby agree to do, execute, acknowledge and deliver or cause to be done, executed or acknowledged or delivered and to perform all such acts and deliver all such deeds, assignments, transfers, conveyances, powers of attorney, assurances, recipes, records and other documents, as may, from time to time, be required herein to effect the intent and purposes of this Agreement. 5.12 Status. - ------------ Nothing in this Agreement shall be construed or shall constitute a partnership, joint venture, agency, or lessor-lessee relationship; but, rather, the relationship established hereby is that of employer-employee in XStream. 5.13 Counterparts. - ------------------ (a) This Agreement may be executed in any number of counterparts. (b) Execution by exchange of facsimile transmission shall be deemed legally sufficient to bind the signatory; however, the Parties shall, for aesthetic purposes, prepare a fully executed original version of this Agreement, which shall be the document filed with the Securities and Exchange Commission. In Witness Whereof, the Parties have executed this Agreement, effective as of the last date set forth below. Signed, Sealed & Delivered In Our Presence The Employee /s/Theodore Farnsworth - -------------------------- Theodore Farnsworth Dated: June 4, 2003 XStream Beverage Group, Inc. A Nevada corporation. /s/Jerome Pearring - -------------------------- BY: Jerome Pearring President (CORPORATE SEAL) Attest: ----------------------- Dated: April 4, 2003 EX-10.7 7 consulting-107.txt CONSULTING AGREEMENT - HAGLUND Exhibit 10.7 ------------ CONSULTING AGREEMENT -------------------- AGREEMENT, made as of the 3rd day of June 2003 is by and between Xstream Beverage Group, Inc. (the "Company") and Steve A. Haglund (the "Consultant"). WHEREAS, the Consultant has previously served as a member of the Company's Board of Directors and as an officer of the Company; and WHEREAS, the Consultant has valuable knowledge and skills and the Company wishes to rely on the Consultant on an ongoing basis; and WHEREAS, the Company desires to retain the Consultant for consulting services in connection with the Company's business affairs on a non- exclusive basis, and the Consultant is willing to undertake to provide such services as hereinafter fully set forth: WITNESSETH NOW THEREFORE, the parties agree as follows: 1. TERM: The term of this Agreement is for one year. Except in the event of the death, incapacity or "For Cause" this Agreement may not be terminated. Cause is defined as habitual neglect of duties or responsibilities, conviction of a felony or if charged with any complaint involving the offer or sale of securities. 2. NATURE OF SERVICES/DUTIES: The Company hereby engages Consultant to render the services hereinafter described during the term hereof (its being understood and agreed that Consultant is free tender the same or similar services to any other entity selected by it). (1) Consult with Company as directed concerning on-going strategic corporate planning, joint ventures and strategic alliances, including any revision of the Company's client's business plan. (2) Render advice with respect to expanding and distributing the Company's product lines. (3) Assist in negotiation of Company's contracts with suppliers and major customers when so required by the Company. (4) Consult with and advise the Company with regards to potential mergers and acquisitions. (5) Evaluate the Company's marketing and sales requirements. The services identified above shall be rendered on an "As Needed" basis. However, Consultant shall not be required to render more than 40 hours of service in any calendar month. Services may be provided by the Consultant at his home. 3. COMPENSATION: It is mutually agreed that the Consultant will be entitled to compensation of $40,000 per year payable monthly in arrears with the first payment due July 1, 2003. In the event that any payment is not received by the 10th day of any month following its due date, Consultant may declare the Company in Default. In the event of a Default, Consultant may demand immediate payment of all outstanding sums due and owing under this agreement except for reimbursable expenses. 4. EXPENSES: Consultant shall receive a non-accountable monthly expense allowance of $550 per month to reimburse Consultant for any auto expenses incurred in connection with the performance of the services. In addition, Consultant shall be entitled to reimbursement for all out of pocket expenses. However, any expenses in excess of $500, exclusive of the car allowance, shall require the prior approval of the Company. 5. COMPLETE AGREEMENT: This Agreement contains the entire Agreement between the parties with respect to the contents hereof supersedes all prior agreements and understandings between the parties with the respect to such matters, whether written or oral. Neither this Agreement, nor any term or provisions hereof may be changed, waived, discharged or amended in any manner other than by any instrument in writing, signed by the party against which the enforcement of the change, waiver, discharge or amendment is sought. 6. COUNTERPARTS: This Agreement may be executed in two or more counterparts, each of which shall be an original but all of which shall constitute one Agreement. 7. SURVIVAL: Any termination of this Agreement shall not, however, affect the on-going provisions of this Agreement, which shall survive such termination in accordance with their terms. 8. NOTICE: Any or all notices, designations, consents, offers, acceptance or other communication provided for herein shall be given in writing and delivered in person or by registered or certified mail, return receipt requested, directed to the address shown below unless notice of a change of address is furnished: If to Consultant: Steve A. Haglund ______________ ______________ If to Company: Xstream Beverage Group, Inc. 621 N.W. 53rd Street Suite 145 Boca Raton, Florida 9. SEVERABILITY: Whenever possible, each provision of Agreement will be interpreted in such manner as to be effective and valid under applicable law. If any provision of this Agreement is held to be invalid, illegal or unenforceable provision had never been contained herein. 10. MISCELLANEOUS: (a) All final decisions with the respect to consultation, advice and services rendered by the Consultant to the Company shall rest exclusively with the Company, and Consultant shall not have any right or authority to bind the Company to any obligation or commitment. (b) The parties hereby agree to submit any controversy or claim arising out of or relating to this Agreement to final binding arbitration administered by the American Arbitration Association ("AAA") under its Commercial Arbitration Rules, and further agree that immediately after the filing of a claim as provided herein they shall in good faith attempt mediation in accordance with the AAA Commercial Mediation Rules; provided, however, that the proposed mediation shall not interfere with or in any way impede the progress of arbitration. The parties also agree that (i) the AAA Optional Rules for Emergency Measures of Protection shall apply to any proceedings initiated hereunder; (ii) the arbitrator shall be authorized and empowered to grant any remedy or relief, which the arbitrator deems just and equitable in nature, including, but not limited to, specific performance, injunction, declaratory judgment and other forms of provisional relief in addition to a monetary award. (b) In the event of any arbitration or litigation arising out of this Agreement, the prevailing party shall be entitled to recover all costs including reasonable attorneys fees. THIS AGREEMENT HAS BEEN PREPARED FOR THE COMPANY BY THE LAW FIRM OF NEWMAN, POLLOCK & KLEIN. CONSULTANT HAS HAD THE OPPORTUNITY TO CONSULT WITH INDEPENDENT COUNSEL. Xstream Beverage Group Inc. Consultant /s/Theodore Farnsworth /s/Steve A. Haglund ------------------------- ---------------------- BY: Theodore Farnsworth Steve A. Haglund Chairman EX-10.8 8 consulting-108.txt CONSULTING AGREEMENT - ARIOLI Exhibit 10.8 ------------ CONSULTING AGREEMENT -------------------- AGREEMENT, made as of the 3rd day of June 2003 is by and between Xstream Beverage Group, Inc. (the "Company") and Edward Arioli (the "Consultant"). WHEREAS, the Consultant has previously served as a member of the Company's Board of Directors and as an officer of the Company; and WHEREAS, the Consultant has valuable knowledge and skills and the Company wishes to rely on the Consultant on an ongoing basis; and WHEREAS, the Company desires to retain the Consultant for consulting services in connection with the Company's business affairs on a non- exclusive basis, and the Consultant is willing to undertake to provide such services as hereinafter fully set forth: WITNESSETH NOW THEREFORE, the parties agree as follows: 1. TERM: The term of this Agreement is for one year. Except in the event of the death, incapacity or "For Cause" this Agreement may not be terminated. Cause is defined as habitual neglect of duties or responsibilities, conviction of a felony or if charged with any complaint involving the offer or sale of securities. 2. NATURE OF SERVICES/DUTIES: The Company hereby engages Consultant to render the services hereinafter described during the term hereof (its being understood and agreed that Consultant is free tender the same or similar services to any other entity selected by it). (1) Consult with Company as directed concerning on-going strategic corporate planning, joint ventures and strategic alliances, including any revision of the Company's client's business plan. (2) Render advice with respect to expanding and distributing the Company's product lines. (3) Assist in negotiation of Company's contracts with suppliers and major customers when so required by the Company. (4) Consult with and advise the Company with regards to potential mergers and acquisitions. (5) Evaluate the Company's marketing and sales requirements. The services identified above shall be rendered on an "As Needed" basis. However, Consultant shall not be required to render more than 40 hours of service in any calendar month. Services may be provided by the Consultant at his home. 3. COMPENSATION: It is mutually agreed that the Consultant will be entitled to compensation of $40,000 per year payable monthly in arrears with the first payment due July 1, 2003. In the event that any payment is not received by the 10th day of any month following its due date, Consultant may declare the Company in Default. In the event of a Default, Consultant may demand immediate payment of all outstanding sums due and owing under this Agreement. In addition to the compensation set forth above, Consultant shall also be entitled to the use of a 2000 Ford Expedition until the end of the lease term. 4. EXPENSES: Consultant shall be entitled to reimbursement for all out of pocket expenses. However, any expenses in excess of $500, exclusive of the car allowance, shall require the prior approval of the Company. 5. COMPLETE AGREEMENT: This Agreement contains the entire Agreement between the parties with respect to the contents hereof supersedes all prior agreements and understandings between the parties with the respect to such matters, whether written or oral. Neither this Agreement, nor any term or provisions hereof may be changed, waived, discharged or amended in any manner other than by any instrument in writing, signed by the party against which the enforcement of the change, waiver, discharge or amendment is sought. 6. COUNTERPARTS: This Agreement may be executed in two or more counterparts, each of which shall be an original but all of which shall constitute one Agreement. 7. SURVIVAL: Any termination of this Agreement shall not, however, affect the on-going provisions of this Agreement, which shall survive such termination in accordance with their terms. 8. NOTICE: Any or all notices, designations, consents, offers, acceptance or other communication provided for herein shall be given in writing and delivered in person or by registered or certified mail, return receipt requested, directed to the address shown below unless notice of a change of address is furnished: If to Consultant: Edward Arioli ______________________ ______________________ If to Company: Xstream Beverage Group, Inc. 621 N.W. 53rd Street Suite 145 Boca Raton, Florida 9. SEVERABILITY: Whenever possible, each provision of Agreement will be interpreted in such manner as to be effective and valid under applicable law. If any provision of this Agreement is held to be invalid, illegal or unenforceable provision had never been contained herein. 10. MISCELLANEOUS: (a) All final decisions with the respect to consultation, advice and services rendered by the Consultant to the Company shall rest exclusively with the Company, and Consultant shall not have any right or authority to bind the Company to any obligation or commitment. (b) The parties hereby agree to submit any controversy or claim arising out of or relating to this Agreement to final binding arbitration administered by the American Arbitration Association ("AAA") under its Commercial Arbitration Rules, and further agree that immediately after the filing of a claim as provided herein they shall in good faith attempt mediation in accordance with the AAA Commercial Mediation Rules; provided, however, that the proposed mediation shall not interfere with or in any way impede the progress of arbitration. The parties also agree that (i) the AAA Optional Rules for Emergency Measures of Protection shall apply to any proceedings initiated hereunder; (ii) the arbitrator shall be authorized and empowered to grant any remedy or relief, which the arbitrator deems just and equitable in nature, including, but not limited to, specific performance, injunction, declaratory judgment and other forms of provisional relief in addition to a monetary award. (b) In the event of any arbitration or litigation arising out of this Agreement, the prevailing party shall be entitled to recover all costs including reasonable attorneys fees. THIS AGREEMENT HAS BEEN PREPARED FOR THE COMPANY BY THE LAW FIRM OF NEWMAN, POLLOCK & KLEIN. CONSULTANT HAS HAD THE OPPORTUNITY TO CONSULT WITH INDEPENDENT COUNSEL. Xstream Beverage Group Inc. Consultant /s/ Theodore Farnsworth /s/Edward Arioli - ----------------------------- ---------------------- BY: Theodore Farnsworth Edward Arioli Chairman -----END PRIVACY-ENHANCED MESSAGE-----