EMPLOYMENT AGREEMENT Exhibit 10(n)
THIS AGREEMENT made as of the 9th day of June, 1998, by and
between APPLIED WATER MANAGEMENT, INC., a New Jersey corporation
having a principal place of business at 0 Xxxxxxx Xxxx, Xxxxx
Xxxx, Xxx Xxxxxx 00000 (hereinafter referred to as "Employer"),
and XXXXXX X. XXXXXXX, an individual residing at xxxxxxxxxxx,
xxxxxxxxxxxxx (hereinafter referred to as
"Employee").
WITNESSETH:
WHEREAS, the Employer provides design/build services in the
water and wastewater industry; and
WHEREAS, the Employee has been employed by the Employer for a
number of years in numerous executive and managerial capacities
and is currently the President of the Employer; and
WHEREAS, the Employee possesses an intimate knowledge of the
business and affairs of the Employer and its subsidiaries, their
policies, methods, personnel and problems; and
WHEREAS, the Employer desires to assure the Employer of the
Employee's continued employment as President of the Employer;
and the Employee desires to continue to provide services to the
Employer as President of the Employer, in accordance with the
terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the covenants and promises
contained herein and for other good consideration, it is
mutually agreed by the parties hereto as follows:
ARTICLE I
Nature of Employment
1.01 Employment. The Employer does hereby agree to continue to
employ, engage and hire the Employee and the Employee does
hereby agree to continue to serve the Employer, on the terms and
conditions set forth in this Agreement.
1.02 Position and Duties. The Employee shall serve as President
of the Employer and shall have responsibility, reporting only to
the Board of Directors of the Employer (the "Board"), or such
other individuals as may be designated by the Board, to
supervise the general management and operations of the Employer,
and shall have such other powers and duties as may from time to
time be prescribed by the Board to ensure that the goals and
objectives of the Board are met in a timely fashion, and all
incidental and related tasks necessary to facilitate the growth
of the Employer; provided that such duties are consistent with
the Employee's present duties and position as President of the
Employer. The Employee shall exert all reasonable efforts on
behalf of the Employer and shall devote substantially all of his
working time to the business and affairs of the Employer. The
Employee agrees that he will at all times faithfully,
industriously and to the best of his ability, experience and
talent perform all of the duties that may be required of him
pursuant to the terms hereof to the reasonable satisfaction of
the Employer.
1.03 Meetings with the President and Board. Employee shall meet
with the Board at the offices of the Employer on a regular basis
and shall submit at such meetings reports and such other
information as may be required or requested by the Employer
and/or the Board from time to time.
ARTICLE II
Duration of Employment
2.01 The term of this Agreement shall be for a period of four
(4) years commencing on March 6, 1998, unless sooner terminated
or extended as set forth under this Agreement. At the end of
said term, this Agreement shall automatically be extended for
additional successive periods of four (4) years each unless
either the Employer or the Employee notifies the other in
writing not less than sixty (60) days prior to the expiration
date of the then current term of this Agreement of its intent
not to renew the term of this Agreement.
Article III
Compensation
3.01 Base Salary. The Employer shall pay the Employee and
Employee hereby agrees to accept from the Employer, in full
payment for the Employee's services hereunder, a base salary in
the amount of $175,000.00 per annum ("Base Salary") payable on a
twoweek basis. Base Salary shall be subject to the usual
deductions for taxes, medical insurance and other insurance in
accordance with the Employer's standard policies in effect from
time to time. The Base Salary shall be reviewed annually and
adjusted at the sole discretion of the Board based on the
Board's evaluation of the Employee's performance hereunder and
the Employer's practice. In addition to Base Salary, the
Employee shall be entitled to receive such incentive
compensation and bonuses as the Board may from time to time
determine in its sole discretion.
3.02 Expenses. The Employer agrees to reimburse the Employee
for any and all documented, necessary, customary, legitimate,
reasonable and usual expenses incurred by the Employee while
acting on behalf of the Employer and within the scope of
employment under this Agreement. The Employee shall comply with
the Employer's general expense and reimbursement policies and
procedures in effect from time to time. In the event that the
Employee is entitled to reimbursement for expenses, the Employer
shall reimburse the Employee within thirty (30) days of receipt
of documents submitted by the Employee evidencing to the
satisfaction of the Employer the amount due for such related
business expenses.
3.03 Fringe Benefits. The Employee shall be entitled to
continue to participate in and receive benefits under any and
all of the Employer's employee benefits plans and arrangements
in which the Employee currently is a participant and any other
plan or arrangement made available during the term of this
Agreement by the Employer to its employees generally including,
without limitation, any incentive compensation, company credit
card program, pension, life insurance, stock option, stock
rights, stock bonus, profit sharing, deferred compensation,
vacation, or health-and-accident plans, subject to and on a
basis consistent with the terms, conditions and overall
administration of such plans and arrangements, as the Employer
in its sole discretion may amend from time to time during the
term of this Agreement. Nothing paid to the Employee under any
such plan or arrangement referred to in this Section 3.03 shall
be deemed to be in lieu of compensation to the Employee under
Section 3.01 hereof.
3.04 Motor Vehicle. During the term of this Agreement, the
Employer shall provide the Employee a motor vehicle in good
condition and comparable in quality and amenities to the Saab
900 Turbo convertible currently provided to the Employee by the
Employer (which may include a lease by the Employer of such
motor vehicle for the benefit of the Employee), and shall pay
for the costs of all fuel, maintenance, and insurance for said
motor vehicle in accordance with the Employer's general policies
and procedures relating thereto. The Employee acknowledges that
benefits to the Employee under this Section 3.04 are chargeable
as income to the Employee to the extent required by applicable
law.
ARTICLE IV
Restrictions Surviving Termination of Employment
4.01 Covenant Not to Compete. Employee agrees that he shall
not, during the term of this Agreement and, if his employment is
terminated for any reason whatsoever other than for a Change in
Control (as hereinafter defined), during the Restrictive Period
(as hereinafter defined), alone or with others, directly or
indirectly (as owner, stockholder, partner, member, lender or
other investor, director, officer, employee, consultant, agent
or in any other capacity or otherwise beneficially) own, manage,
operate, join in, control, participate in the ownership,
management, operation, or control of, or work for, or permit the
use of his name by, or provide financial or other assistance to,
or be connected in any manner with, any person, corporation,
partnership or entity which engages in, any business which is
the same as or is similar to the business of the Employer or any
affiliate of the Employer which offers products or services
competitive with those offered or proposed to be offered by the
Employer or any affiliate of the Employer. The Restrictive
Period shall commence as of the date of termination of the
Employee's employment with the Employer and continue for a
period of two (2) years thereafter. The restrictions set forth
in this Section 4.01 shall apply to any business either located
in or doing business within, or to services rendered to
individuals or companies either located in or doing business
within, (i) the geographic boundaries of New Jersey, (ii) all
areas of Pennsylvania within a fifty (50) mile radius of the
westerly bank of the Delaware River, and (iii) within a
twenty-five (25) mile radius of any office of the Employer or
wastewater disposal systems or similar facilities designed
and/or built by the Employer within the twelve (12) months
immediately preceding such termination (the "Restricted
Territory"). The Employee recognizes and agrees that in order
to adequately protect the Employer's confidential information
from disclosure (whether deliberate or inadvertent) to
competitors, a covenant not to compete of limited duration and
scope is necessary and desirable, and that the nature of
Employer's business is such that use of the Employer's
confidential information anywhere in the Restricted Territory
will harm the Employer's business.
4.02 Covenant Not to Solicit. The Employee agrees that during
the Restrictive Period he shall not, alone or with others,
directly or indirectly (as owner, stockholder, partner, member,
lender or other investor, director, officer, employee,
consultant, agent or in any other capacity or otherwise
beneficially) do any of the following:
(a) induce or attempt to induce or solicit for his benefit or
the benefit of any person, corporation, partnership or entity,
other than the Employer, any person who, during the term of this
Agreement, is an employee, representative, consultant, agent or
supplier of the Employer or any affiliate of the Employer, to
terminate his, her or its employment or relationship with the
Employer or any such affiliate or to violate the terms of any
agreement between said representative, agent, consultant,
employee or supplier of the Employer or any such affiliate, or
hire or attempt to hire any employee of the Employer or
affiliate of the Employer who has left the employment of the
Employer or such affiliate within sixty (60) days after the
termination of such employee's employment with the Employer or
such affiliate; or
(b) induce or attempt to induce any person, business or entity
which is or was a client or customer of the Employer or any
affiliate of the Employer at any time during the term of the
Employee's employment with the Employer to terminate any written
or oral agreement or understanding with the Employer or any such
affiliate to become a customer of any person, corporation,
partnership or other entity which engages in any business which
is the same as or is similar to any business engaged in by the
Employer or any affiliate of the Employer or which offers
product or services competitive with those offered or proposed
to be offered by the Employer or any affiliate of the Employer
on the date of such termination.
4.03 Applicability. Notwithstanding anything to the contrary
contained in the provisions of this Article VI, the Employee
shall not be subject to the restrictive covenants set forth in
Sections 4.02 and 4.03 above in the event the Employee's
employment with the Employer is terminated (whether by the
Employee or the Employer) as a result of a Change of Control.
For purposes of this Agreement, a "Change of Control" shall be
deemed to have occurred if:
(a) any "person", as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), directly or indirectly, hereafter becomes the
beneficial owner (as defined in Rule 13d-3 of the Exchange Act)
of securities of the Employer representing more than fifty
percent (50%) of the combined voting power of the Employer's
then outstanding securities having the ordinary right to elect
directors of the Employer, other than any person who (i) at the
time of acquisition of such beneficial ownership is a trustee or
other fiduciary holding securities under an employee benefit
plan of the Employer, or (ii) is an immediate family member of
any "person" described in clause (i) of this Section 4.03(a), or
(iii) has been a "person" for more than twenty-four (24)
consecutive months prior to such termination, or (iv) is a
"person" engaging in a transaction of the type described in
Section 4.03(c) below but which does not constitute a change in
control thereunder; or
(b) during any period of twenty-four (24) consecutive months
during the term of this Agreement, individuals who at the
beginning of such period constitute the Board and any new
director (other than a director designated by a person who has
entered into an agreement with the Employer to effect a
transaction described in Sections 4.03(a) or 4.03(c) of this
Agreement) whose election by the Board, or nomination for
election by the Employer's shareholders, was approved by a vote
of at least two-thirds (2/3) of the directors then still in
office who either were directors at the beginning of the period
or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority of the
Board; or
(c) the shareholders of the Employer approve or, if no
shareholder approval is required or obtained, the Employer
completes a merger, consolidation or similar transaction of the
Employer with or into any other corporation (other than an
affiliate of the Employer), or completes a binding share
exchange involving the Employer's securities (other than with an
affiliate of the Employer), other than any such transaction
which would result in the voting securities of the Employer
outstanding immediately prior to such transaction continuing to
represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) at least
seventy-five percent (75%) of the combined voting power of the
voting securities of the Employer or such surviving entity
outstanding immediately after such transaction; or
(d) the shareholders of the Employer approve a plan of complete
liquidation of the Employer or an agreement for the sale or
disposition by the Employer of all or substantially all of the
Employer's assets.
ARTICLE V
Nondisclosure of Information Concerning Business; Inventions
5.01 Nondisclosure. The Employee agrees that he will not at any
time, either directly or indirectly, disclose or communicate to
any person, firm or corporation, in any manner, any information
of any kind or nature concerning any matters affecting or
relating to the business of the Employer or any of the
affiliates of the Employer. The foregoing shall include, but
not be limited to, a prohibition against disclosing or
communicating the names of any of current or potential customers
or any other information concerning the business of the Employer
or its affiliates, the manner of operation, plans or any other
data of any kind relating to the Employer or its affiliates. The
foregoing prohibition shall apply regardless of whether the same
would be deemed confidential material or important, as the
parties hereto stipulate that, as between them, all information
of any kind concerning the business of the Employer or of the
Employer's affiliates is important material and confidential.
The breach of the terms of this Section 5.01 shall be a material
breach of this Agreement. The terms, conditions and
restrictions and prohibitions set forth in this Article V shall
not apply to any disclosures or communications which the
Employee makes in good faith while acting on behalf of and for
the benefit of the Employer. The provisions of this Section
5.01 shall be binding upon the Employee's heirs, successors and
legal representatives.
5.02 Inventions. The Employee expressly covenants and agrees
that any inventions, improvement, discoveries, processes or
methods that the Employee, solely or jointly with others, makes,
invents, discovers, develops, acquires or suggests (whether or
not at the request or upon the suggestion of the Employer or
during regular hours of work or otherwise) during the Employee's
employment with the Employer relating generally to any matter
connected in any way to the services performed directly or
indirectly by the Employee for the Employer shall become the
absolute and exclusive property of the Employer.
ARTICLE VI
Termination
6.01 Termination.
(a) Death.The Employee's employment hereunder shall
automatically terminate upon the Employee's death.
(b) Disability.The Employer may terminate the Employee's
employment hereunder upon the Employee's Disability (as
hereinafter defined).
(c) Cause.The Employer may terminate the Employee's employment
hereunder for Cause.
(d) Termination by the Employee. The Employee may terminate
the Employee's employment hereunder for any reason whatsoever.
(e) Other Termination by the Employer. The Employer may
terminate the Employee's employment hereunder for any reason
whatsoever (other than for the death or Disability of the
Employee or for Cause, which shall be governed by the applicable
provisions of this Agreement) upon thirty (30) days' prior
written notice.
6.02 Notice of Termination. Any termination of the Employee's
employment with the Employer shall be communicated by written
notice of termination to the other party hereto.
6.03 Compensation Upon Termination.
(a) In the event the Employee's employment is terminated by
the Employer prior to the expiration of the initial or any
renewal term of this Agreement, for any reason other than Cause
(including death or Disability), the Employee shall be entitled
to receive severance pay in an amount equal to three (3) months
of the Employee's then current Base Salary, payable in six (6)
equal bi-weekly installments commencing as of the date of such
termination, subject to the usual deductions for taxes, and any
medical insurance and other insurance provided to the Employee
by the Employer at the time of such termination, in accordance
with the Employer's standard policies then in effect, which the
Employee elects to continue during such period after such
termination.
(b) If the Employee's employment hereunder shall be terminated
for Cause, or is terminated by the Employee for any reason
whatsoever, the Employer shall pay the Employee's Base Salary
accrued through the date of termination at the rate in effect at
the time notice of termination is given and the Employer shall
have no further obligations to the Employee under this Agreement.
(c) The Employee shall be required to mitigate the amount of
any payment provided for in this Article VI by seeking other
employment, and the amount of any payment provided for in this
Article VI shall be reduced by any compensation earned by the
Employee as the result of employment by another employer after
the date of any such termination and may be otherwise reduced by
way of offset against any amount owed by the Employee to the
Employer.
6.04 Definitions. For purposes of this Agreement, the
following terms shall have the meanings set forth below:
(a) "Cause" shall mean (A) the failure by the Employee to
substantially perform the Employee's duties hereunder (other
than any such failure resulting from the Employee's Disability),
or (B) the engaging by the Employee in conduct which is
injurious to the Employer including, but not limited to,
embezzlement, theft or similar criminal conduct or fraud, or (C)
the breach by the Employee of any provision of this Agreement.
(b) "Disability" shall mean that the Employee is unable, as a
result of any mental or physical condition, from substantially
performing the Employee's usual and customary duties and
obligations for a continuous period of one hundred eighty (180)
days or such longer period as may agreed by the Employer. The
Employee hereby consents to reasonable medical examinations by
physicians appointed by the Employer for purposes of determining
Disability of the Employee under this Agreement.
ARTICLE VII
Resolutions of Disputes
7.01 Mediation. If a disagreement exist between or among the
parties concerning this Agreement, any party may require the
other party to submit the reason for its position, in writing,
and to then enter into good faith negotiations to attempt to
resolve the disagreement. If such disagreement cannot be
settled by good faith negotiation between the parties, and if
the continued failure to settle such disagreement is likely to
have a material adverse impact on the Employer, any party may
elect to submit the disagreement to mediation under the
Commercial Mediation Rules of the American Arbitration
Association. If any party so elects, the other party shall
submit to mediation. The mediator shall not have authority to
impose a settlement upon the parties, but will attempt to help
them reach a satisfactory resolution of the disagreement. The
mediator shall end the mediation whenever, in the mediator's
judgment, further efforts at mediation would not contribute to a
resolution of the submitted disagreement. The costs and fees of
such mediation shall be allocated by the mediator.
7.02 Arbitration. All claims, disputes and other matters in
question arising out of, or relating to, this Agreement or the
performance thereof shall be submitted to, and determined by,
arbitration if good faith negotiations among the parities do not
resolve such claim, dispute or other matter within ninety (90)
days and the parties have not elected to submit such claim,
dispute or other matter to mediation pursuant to Section 7.01
above. Such arbitration shall proceed in accordance with the
Commercial Arbitration Rules of the American Arbitration
Association then pertaining (the "Rules"), insofar as such Rules
are not inconsistent with the provisions expressly set forth in
this Agreement, unless the Employer and the Employee mutually
agree otherwise in writing. Notice of the demand for
arbitration shall be filed in writing with the other party to
this Agreement and with the American Arbitration Association.
The arbitrator shall be appointed by the American Arbitration
Association in accordance with the Rules. Reasonable discovery
shall be allowed in arbitration. All proceedings before the
arbitrator shall be held in Union County, New Jersey. The
governing law shall be as specified in Section 9.05 below. The
costs and fees of the arbitration, including attorneys' fees,
shall be allocated by the arbitrators. The award rendered by
the arbitrator shall be final and binding and any judgment
relating to such arbitration award may be entered in accordance
with applicable law and in any court having jurisdiction thereof.
ARTICLE VIII
Assignment
8.01 During the term of this Agreement, the Employer shall have
the right, without the Employee's consent or approval, to assign
this Agreement to any successor to or assignee of (whether
direct or indirect, by purchase, consolidation, merger or
otherwise) all or substantially all of the business and/or
assets of the Employer and, in any such event, the Employee
shall have the right, upon prompt written request, to receive a
written agreement from such successor or assign, as the case may
be, to expressly assume and agree to perform this Agreement in
the same manner and to the same extent that the Employer would
be required to perform if no such succession or assignment had
taken place. Upon any such assignment, subject to the
provisions of Section 4.03 of this Agreement, the terms and
conditions of this Agreement shall continue in full force and
effect and shall inure to the benefit of such successor or
assignee, as the case may be.
ARTICLE IX
Miscellaneous
9.01 Entire Agreement; Modification. This Agreement contains
the sole and entire Agreement between the parties hereto and
incorporates and supersedes any and all prior or contemporaneous
oral or written agreements with respect to the matters referred
to herein. This Agreement may not be modified, amended or
changed except by an agreement in writing signed by both parties
hereto. The parties acknowledge and agree that neither of them
have made any representation with respect to the subject matter
of this Agreement or any representations including the execution
and delivery hereof.
9.02 Waiver. No waiver by either party hereto at any time of
any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such
other parry shall be deemed a continuing waiver or a waiver of
any similar or dissimilar provisions or conditions at the same
or at any prior or subsequent time.
9.03 Invalidity. To the extent any provisions hereof may be
held invalid or unenforceable as a matter of law, the remaining
provisions hereof shall continue in full force and effect.
9.04 Counterparts. This Agreement may be executed and exchanged
in counterparts.
9.05 Governing Law. Irrespective of the present or future
residence of either of the parties hereto, the parties hereby
agree that the terms of this Agreement shall be governed by and
interpreted in accordance with the laws of the State of New
Jersey, without giving effect to principles of conflicts of law.
9.06 Survival. The Employee understands that the provisions of
Articles 4 and 5 of this Agreement shall survive, in full force
and effect, any expiration or termination of this Agreement for
any reason whatsoever.
9.07 Specific Performance. The parties hereto, recognizing that
irreparable injury to the Employer, its business and property
would inevitably occur in the event of any violation of this
Agreement by the Employee, and that damages at law may be
inadequate to compensate the loss resulting therefrom, agree
that in any such event the Employer shall be entitled to an
injunction, in addition to any other remedies and damages
available and without proof of monetary or immediate damage, to
restrain the violation thereof by the Employee or other person,
partnership, firm, corporation, Employer, servant, agent,
employers or employees acting for or with the Employee.
9.08 Binding Nature. The rights and obligations of the Employer
under this Agreement shall inure to the benefit of and shall be
binding upon the Employer and its successors and assigns.
9.9 Section Headings. The section headings contained in this
Agreement are inserted for reference purposes only and shall not
effect the meaning or interpretation of this Agreement.
9.10 Notice. Any notice required or permitted to be given under
this Agreement shall be sufficient if in writing and if sent by
certified mail return receipt requested, postage prepaid, to the
party entitled to receive the same at the address for such party
or to such other address as a party may fix by notice or in the
case of notice to the Employee, in person to the Employee, or in
the case of notice to the Employer, in person to an executive
officer of the Employer and immediately confirmed by writing to
the president of the Employer. All notices given by mail shall
be deemed given when mailed.
9.11 Waiver of Trial by Jury. THE EMPLOYEE EXPRESSLY WAIVES ANY
RIGHT TO TRIAL BY JURY IN ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE, BETWEEN THE EMPLOYER AND THE
EMPLOYEE ARISING OUT OF OR RELATED TO THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT
OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH.
EITHER THE EMPLOYER OR THE EMPLOYEE MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT OF
COMPETENT JURISDICTION AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
IN WITNESS WHEREOF, the undersigned parties have executed this
Agreement as of the date set forth above.
ATTEST: APPLIED WATER MANAGEMENT, INC.
/s/ Xxxxx X. Xxxxxxx
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Chairman
WITNESSETH: EMPLOYEE
/s/ Xxxxx X. Xxxxxxxxx, III /s/ Xxxxxx X. Xxxxxxx
XXXXXX X. XXXXXXX
