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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") by and among Chemical
Logistics Corporation, a Delaware corporation ("CLC"), [Founding Company], a
corporation and a wholly owned subsidiary of CLC (the "Company") and
("Executive") is hereby entered into effective as of the date of the
consummation of the initial public offering ("Offering") of the common stock of
CLC (the "Effective Date"). References herein to "CLC" shall be deemed to
include all present and future operating subsidiaries of CLC.
RECITALS
The following statements are true and correct:
As of the Effective Date, the Company and CLC will be engaged primarily
in the providing of chemical distribution services and logistics.
In the course of his employment with the Company, Executive will become
familiar with and aware of information as to CLC's and the Company's customers
and specific manner of doing business, including the processes, techniques and
trade secrets utilized by the Company and CLC, and future plans with respect
thereto, all of which have been and will be established and maintained at great
expense to the Company and CLC. This information is a trade secret and
constitutes the valuable goodwill of the Company and CLC.
Therefore, in consideration of the mutual promises, terms, covenants
and conditions set forth herein and the performance of each, it is hereby agreed
as follows:
AGREEMENTS
1. EMPLOYMENT AND DUTIES
(a) The Company hereby employs Executive as . As such, Executive shall
have responsibilities, duties and authority reasonably accorded to, expected of
and consistent with Executive's position as __________________________________
of the Company and will report to the _____________________________ of CLC.
Executive hereby accepts this employment upon the terms and conditions herein
contained and, subject to paragraph l(c), agrees to provide full-time services
to promote and further the business and interests of the Company and its
affiliates.
(b) Executive shall faithfully adhere to, execute and fulfill all
lawful policies established by the Company.
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(c) Except as set forth on Schedule l(c) hereto, Executive shall not,
during the term of his employment hereunder, engage in any other business
activity pursued for gain, profit or other pecuniary advantage if such activity
interferes in any material respect with Executive's duties and responsibilities
hereunder. The foregoing limitations shall not be construed as prohibiting
Executive from making personal investments in such form or manner as will
neither require his services in the operation or affairs of the companies or
enterprises in which such investments are made nor violate the terms of
paragraph 3 hereof.
(d) Executive shall be entitled to vacation in accordance with the
policies of the Company.
2. COMPENSATION
For all services rendered by Executive, the Company shall compensate
Executive as follows:
(a) Base Salary. The base salary payable to Executive during the term
shall be $_______________ per year, payable in accordance with the Company's
payroll procedures for officers, but not less frequently than monthly. After the
first full year of employment hereunder, such base salary may be increased from
time to time, at the discretion of the Board of CLC, in light of the Executive's
responsibilities and performance.
(b) Incentive Bonus Plan. It is CLC's intent to develop a written
Incentive Bonus Plan setting forth the criteria under which executives of CLC
will be eligible to receive year-end bonus awards. In the event that the
Incentive Bonus Plan is established, Executive shall be entitled to participate
in such plan in the same manner as similarly situated executives of CLC. No
Incentive Bonus Plan payments will be made for the twelve (12) month operating
period following the Offering.
(c) Executive Perquisites, Benefits and Other Compensation. Executive
shall be entitled to receive additional benefits and compensation from the
Company in such form and to such extent as specified below:
(i) Reimbursement for all business travel and other
out-of-pocket expenses (including those costs to maintain any
professional certifications held or obtained by Executive) reasonably
incurred by Executive in the performance of his duties pursuant to this
Agreement and in accordance with the Company's policy for executives of
the Company. All such expenses shall be appropriately documented in
reasonable detail by Executive upon submission of any request for
reimbursement, and in a format and manner consistent with the Company's
expense reporting policy.
(ii) Executive shall, subject to the satisfaction of any
general eligibility criteria, be eligible to participate in all
compensation and benefit plans and programs as are
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maintained from time to time for executives of CLC.
(iii) The Company shall provide Executive with such other
perquisites as may be deemed appropriate for Executive by the
Compensation Committee of the Board of CLC.
3. NON-COMPETITION AGREEMENT
(a) Executive recognizes that the Company's willingness to enter into
this Agreement is based in material part on Executive's agreement to the
provisions of this paragraph 3 and that Executive's breach of the provisions of
this paragraph 3 could materially damage CLC and the Company. Subject to the
further provisions of this Agreement, Executive shall not, during the term of
his employment with the Company, and for a period of two years immediately
following the termination of such for any reason whatsoever, and in any event
for a period of five years immediately following consummation of the Offering,
except as may be set forth herein, directly or indirectly, for himself or on
behalf of or in conjunction with any other person, company, partnership,
corporation or business of whatever nature:
(i) engage, as an officer, director, shareholder, owner,
partner, joint venturer, or in a managerial capacity, whether as an
employee, independent contractor, consultant or advisor, or as a sales
representative, in any business selling any products or services in
direct competition with any products or services sold by CLC or the
Company during the three year period prior to the termination of
Executive's employment with the Company within 100 miles of where any
CLC entity conducts business, including any territory serviced by the
Company during the term of Executive's employment (the "Territory");
(ii) call upon any person who is, at that time, an executive
of CLC for the purpose or with the intent of enticing such executive
away from or out of the employ of CLC;
(iii) call upon any person or entity which is, at that time,
or which has been, within one year prior to that time, a customer of
CLC within the Territory for the purpose of soliciting or selling any
products or services in direct competition with any products or
services sold by CLC during the three year period prior to the
termination of Executive's employment with the Company within the
Territory;
(iv) call upon any prospective acquisition candidate, on
Executive's own behalf or on behalf of any competitor, which candidate
was, to Executive's knowledge after reasonable inquiry, either called
upon by CLC or for which CLC made an acquisition analysis, for the
purpose of acquiring such entity; or disclose customers, whether in
existence or proposed, of CLC to any person, firm, partnership,
corporation or business for any reason or purpose whatsoever except to
the extent that CLC has in the past disclosed such information to the
public for valid business reasons.
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Notwithstanding the above, the foregoing covenant shall not be deemed
to prohibit Executive from acquiring as an investment (i) not more than 2% of
the capital stock of a competing business, whose stock is traded on a national
securities exchange, the Nasdaq Stock Market or on an over-the-counter or
similar market or (ii) not more than 5% of the capital stock of a competing
business whose stock is not publicly traded.
(b) Because of the difficulty of measuring economic losses to CLC as a
result of a breach of the covenant set forth in paragraph 3(a), and because of
the immediate and irreparable damage that could be caused to CLC and for which
it would have no other adequate remedy, Executive agrees that foregoing covenant
may be enforced by CLC, in the event of breach by him, by injunctions and
restraining orders. Executive further agrees to waive any requirement for CLC's
securing or posting of any bond in connection with such remedies.
(c) It is agreed by the parties that the foregoing covenants in this
paragraph 3 impose a reasonable restraint on Executive in light of the
activities and business of CLC on the date of the execution of this Agreement
and the current plans of CLC but it is also the intent of CLC, the Company and
Executive that such covenants be construed and enforced in accordance with the
changing activities, business and locations of CLC throughout the term of this
covenant, whether before or after the date of termination of the employment of
Executive, unless the Executive was conducting such new business prior to CLC
conducting such new business. For example, if, during the term of this
Agreement, CLC engages in new and different activities, enters a new business or
establishes new locations for its current activities or business in addition to
or other than the activities or business enumerated under the Recitals above or
the locations currently established therefor, then Executive will be precluded
from soliciting the customers or executives of such new activities or business
or from such new location and from directly competing with such new business
within 100 miles of its then-established operating location(s) through the term
of this covenant, unless the Executive was conducting such new business prior to
CLC conducting such new business.
(d) It is further agreed by the parties hereto that, in the event that
Executive shall cease to be employed hereunder and shall enter into a business
or pursue other activities not in competition with the activities of CLC or
similar activities or business in locations the operation of which, under such
circumstances, does not violate clause (a)(i) of this paragraph 3, and in any
event such new business, activities or location are not in violation of this
paragraph 3 or of Executive's obligations under this paragraph 3, if any,
Executive shall not be chargeable with a violation of this paragraph 3 if CLC
shall thereafter enter the same, similar or a competitive (i) business, (ii)
course of activities or (iii) location, as applicable.
(e) The covenants in this paragraph 3 are severable and separate, and
the unenforceability of any specific covenant shall not affect the provisions of
any other covenant. Moreover, in the event any court of competent jurisdiction
shall determine that the scope, time or territorial restrictions set forth are
unreasonable, then it is the intention of the parties that such restrictions be
enforced to the fullest extent which the court deems reasonable, and this
Agreement shall thereby
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be reformed.
(f) All of the covenants in this paragraph 3 shall be construed as an
agreement independent of any other provision in this Agreement, and the
existence of any claim or cause of action of Executive against CLC, whether
predicated on this Agreement or otherwise, shall not constitute a defense to the
enforcement by CLC of such covenants; provided, however, that the covenants
pursuant to this paragraph 3 shall be subject to the provisions of paragraph
4(f). It is specifically agreed that the periods of two years (subject to the
further provisions of this Agreement) following termination of employment, and
five years following the consummation of the Offering, stated at the beginning
of this paragraph 3, during which the agreements and covenants of Executive made
in this paragraph 3 shall be effective, shall be computed by excluding from such
computation any time during which Executive is determined to be in violation of
any provision of this paragraph 3.
(g) CLC and the Executive hereby agree that this covenant is a material
and substantial part of this transaction.
4. TERM; TERMINATION; RIGHTS ON TERMINATION
The term of this Agreement shall begin on the Effective Date and
continue for three (3) years (the "Term"), and, unless terminated sooner as
herein provided, shall continue thereafter on a year-to-year basis on the same
terms and conditions contained herein. This Agreement and Executive's employment
may be terminated in any one of the following ways:
(a) Death. The death of Executive shall immediately terminate this
Agreement with no severance compensation due to Executive's estate. Any declared
but unpaid bonuses which the Executive is entitled to receive under CLC's
Incentive Bonus Plan shall be paid.
(b) Disability. If, as a result of incapacity due to physical or mental
illness or injury, Executive shall have been absent from his full-time duties
hereunder for four (4) consecutive months, then thirty (30) days after receiving
written notice (which notice may occur before or after the end of such four (4)
month period, but which shall not be effective earlier than the last day of such
four (4) month period), the Company may terminate Executive's employment
hereunder provided Executive is unable to resume his full-time duties at the
conclusion of such notice period. Also, Executive may terminate his employment
hereunder if his health should become impaired to an extent that makes the
continued performance of his duties hereunder hazardous to his physical or
mental health or his life, provided that Executive shall have furnished the
Company with a written statement from a qualified doctor to such effect and
provided, further, that, at the Company's request made within thirty (30) days
of the date of such written statement, Executive shall submit to an examination
by a doctor selected by the Company who is reasonably acceptable to Executive or
Executive's doctor and such doctor shall have concurred in the conclusion of
Executive's doctor. In the event this Agreement is terminated as a result of
Executive's disability, Executive shall
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receive from the Company, in a lump-sum payment due within ten (10) days of the
effective date of termination, the base salary at the rate then in effect for
whatever time period is remaining under the Initial Term of this Agreement or
for twelve (12) months, whichever amount is greater.
(c) Good Cause. The Company may terminate this Agreement ten (10) days
after written notice to Executive for good cause, which shall be: (1)
Executive's material and irreparable breach of this Agreement; (2) Executive's
gross negligence or willful misconduct in the performance or intentional
nonperformance (continuing for ten (10) days after receipt of written notice of
need to cure) of any of Executive's material duties and responsibilities
hereunder; (3) Executive's dishonesty, fraud or misconduct with respect to the
business or affairs of the Company which materially and adversely affects the
operations or reputation of the Company (monetarily or otherwise); (4)
Executive's conviction of a felony crime or involving moral turpitude; or (5)
chronic alcohol abuse or illegal drug abuse by Executive which is determined by
the Board following a reasonable investigation to materially impair the
Executive's ability to perform his duties and responsibilities. In the event of
a termination for good cause, as enumerated above, Executive shall have no right
to any severance compensation.
(d) Without Cause. At any time after the commencement of employment,
the Company or Executive may, without cause, terminate this Agreement and
Executive's employment, effective thirty (30) days after written notice is
provided to the other party. Should Executive be terminated by the Company
without cause, Executive shall receive from the Company, in the form of a lump
sum payment, the base salary at the rate then in effect for whatever time period
is remaining under the Initial Term of this Agreement or for twelve (12) months,
whichever amount is greater, plus any declared but unpaid bonuses which the
Executive is entitled to receive under CLC's Incentive Bonus Plan. If, at the
time of any termination without cause, Executive has served for at least nine
months since the previous year end on which annual compensation is based and has
satisfied the criteria and performance objectives set forth in CLC's Incentive
Bonus Plan for which a bonus for Executive for the then current year would be
based, then, if a bonus payable to other executives for the then current year is
subsequently declared, Executive shall be entitled to receive a bonus on a
prorated basis based on Executive's satisfaction of such criteria and
performance objectives. Further, any termination without cause by the Company
shall operate to shorten the periods set forth in paragraph 3(a) and during
which the terms of paragraph 3 apply to one (1) year from the date of
termination of employment. If Executive resigns or otherwise terminates his
employment without cause pursuant to this paragraph 4(d), Executive shall
receive no severance compensation.
(e) Change in Control of CLC. This Agreement may be considered
terminated upon a "change in control", as defined in paragraph 9 below and any
payments due shall be in the form of a lump sum payment.
(f) Effect of Termination. Upon termination of this Agreement for any
reason provided above, Executive shall be entitled to receive all compensation
earned and all benefits and reimbursements due through the effective date of
termination. Additional compensation subsequent
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to termination, if any, will be due and payable to Executive only to the extent
and in the manner expressly provided above or in paragraph 9. All other rights
and obligations of CLC, the Company and Executive under this Agreement shall
cease as of the effective date of termination, except that CLC's and the
Company's obligations under paragraphs 4 and 14 herein and Executive's
obligations under paragraphs 3, 5, 6, 7, 8, 10 and 13 herein shall survive such
termination in accordance with their terms.
If termination of Executive's employment arises out of the Company's
failure to pay Executive on or before the date due the amounts to which he is
entitled under this Agreement or as a result of any other breach of this
Agreement by CLC or the Company, as determined pursuant to the provisions of
paragraph 18 below, the Company shall pay all amounts and damages to which
Executive may be entitled as a result of such breach, including interest thereon
and all reasonable legal fees and expenses and other costs incurred by Executive
to enforce his rights hereunder. Further, none of the provisions of paragraph 3
shall apply during such time as any amounts determined pursuant to the
provisions of paragraph 18 below to be payable by the Company under this
Agreement remain unpaid or CLC or the Company is determined pursuant to the
provisions of paragraph 18 below to be in breach of any other provision of this
Agreement, and shall terminate in the event this Agreement is terminated as a
result of a breach by CLC or the Company.
5. RETURN OF COMPANY PROPERTY
All records, designs, patents, business plans, financial statements,
manuals, memoranda, lists and other property delivered to or compiled by
Executive by or on behalf of CLC or the Company or their representatives,
vendors or customers which pertain to the business of CLC or the Company shall
be and remain the property of CLC or the Company, as the case may be, and be
subject at all times to their discretion and control. Likewise, all
correspondence, reports, records, charts, advertising materials and other
similar data pertaining to the business, activities or future plans of CLC or
the Company which is collected by Executive shall be delivered promptly to the
Company without request by either CLC or the Company upon termination of
Executive's employment.
6. INVENTIONS
Executive shall disclose promptly to the Company any and all
significant conceptions and ideas for inventions, improvements and valuable
discoveries, whether patentable or not, which are conceived or made by
Executive, solely or jointly with another, during the period of employment or
within one year thereafter, if conceived during employment, and which are
directly related to the business or activities of CLC and which Executive
conceives as a result of his employment by the Company. Executive hereby assigns
and agrees to assign all his interests therein to the Company or its nominee.
Whenever requested to do so by the Company, Executive shall execute any and all
applications, assignments or other instruments that the Company shall deem
necessary to apply for and obtain Letters Patent of the United States or any
foreign country or to otherwise protect the Company's interest therein. The
Company shall immediately reimburse Executive for all expenses
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incurred by Executive in complying with the provisions of this paragraph 6.
7. TRADE SECRETS
Executive agrees that he will not, during or after the term of this
Agreement, disclose the specific terms of CLC's relationships or agreements with
its respective significant vendors or customers or any other significant and
material trade secret of CLC, whether in existence or proposed, to any person,
firm, partnership, corporation or business for any reason or purpose whatsoever.
8. CONFIDENTIALITY
(a) Executive acknowledges and agrees that all Confidential Information
(as defined below) of CLC is confidential and a valuable, special and unique
asset of CLC that gives CLC an advantage over its actual and potential, current
and future competitors. Executive further acknowledges and agrees that Executive
owes CLC and the Company a duty of loyalty and care as to all Confidential
Information to prevent unauthorized disclosure or unauthorized use, that certain
Confidential Information constitutes "trade secrets" under applicable laws and,
that unauthorized disclosure or unauthorized use of CLC's Confidential
Information would irreparably injure CLC.
(b) Both during the term of Executive's employment and after the
termination of Executive's employment for any reason (including wrongful
termination), Executive shall hold all Confidential Information in strict
confidence, and shall not use any Confidential Information except for the
benefit of the Company, in accordance with the duties assigned to Executive.
Except as necessary in the performance of Executive's duties under this
Agreement, Executive shall not, at any time (either during or after the term of
Executive's employment), disclose any Confidential Information to any person or
entity (except to other Executives of CLC who have a need to know the
information in connection with the performance of their employment duties), or
copy, reproduce, modify, decompile or reverse engineer any Confidential
Information, or remove any Confidential Information from the Company's premises,
without the prior written consent of the Board, or permit any other person to do
so. Executive shall take reasonable precautions, at the Company's expense, to
protect the physical security of all documents and other material containing
Confidential Information (regardless of the medium on which the Confidential
Information is stored). This Agreement applies to all Confidential Information,
whether now known or later to become known to Executive.
(c) Upon the termination of Executive's employment with the Company for
any reason, and upon request of the Company at any other time but without
materially interfering with Executive's ability to perform his duties under this
Agreement, Executive shall promptly surrender and deliver to the Company all
documents and other written material of any nature containing or pertaining to
any Confidential Information and shall not retain any such document or other
material. Within five days of any such request, Executive shall certify to the
Company in writing that all such
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materials have been returned.
(d) As used in this Agreement, the term "Confidential Information"
shall mean any information or material known to or used by or for CLC (whether
or not owned or developed by CLC and whether or not developed by Executive) that
is not generally known to persons in the chemical distribution services and
logistics business or such business as CLC shall have entered into. Confidential
information includes, but is not limited to, the following: all trade secrets of
CLC; all information that CLC has marked as confidential or has otherwise
described to Executive (either in writing or orally) as confidential; all
nonpublic information concerning CLC's products, services, prospective products
or services, research, product designs, prices, discounts, costs, marketing
plans, marketing techniques, market studies, test data, customers, customer
lists and records, suppliers and contracts; all CLC business records and plans;
all CLC personnel files; all financial information of or concerning CLC; all
information relating to operating system software, application software,
software and system methodology, hardware platforms, technical information,
inventions, computer programs and listings, source codes, object codes,
copyrights and other intellectual property; all technical specifications; any
proprietary information belonging to CLC; all computer hardware or software
manuals; all training or instruction manuals; and all data and all computer
system passwords and user codes.
9. CHANGE IN CONTROL
(a) Unless he elects to terminate this Agreement pursuant to this
paragraph 9, Executive understands and acknowledges that CLC may be merged or
consolidated with or into another entity and that such entity shall
automatically succeed to the rights and obligations of CLC and the Company
hereunder.
(b) In the event of a pending Change in Control wherein CLC and
Executive have not received written notice at least five (5) business days prior
to the anticipated closing date of the transaction giving rise to the Change in
Control from the successor to all or a substantial portion of CLC's business
and/or assets that such successor is willing as of the closing to assume and
agrees to perform CLC's and the Company's obligations under this Agreement in
the same manner and to the same extent that CLC and the Company are hereby
required to perform, then such Change in Control shall be deemed to be a
termination of this Agreement by CLC and the Company without cause and the
applicable portions of paragraph 4(d) will apply; however, under such
circumstances, the amount of the severance payment due to Executive shall be
triple the amount calculated under the terms of paragraph 4(d), except that for
purposes of this paragraph 9(b) only, the Incentive Bonus Plan payment amount
shall be the average of the bonus paid in the three prior years, but in any
event not less than seventy-five percent (75%) of Executive's then current base
salary and the non-competition provisions of paragraph 3 shall not apply
whatsoever . Health and all welfare benefits shall be extended for a three (3)
year term at the Company's expense.
(c) In any Change in Control situation, Executive may, at Executive's
sole discretion,
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elect to terminate Executive's employment upon the effective date of such Change
in Control by providing written notice to the Company at least three (3)
business days prior to the closing of the transaction (or ten (10) business days
after receipt of notice of such transaction, whichever is later) giving rise to
the Change in Control. In such case, the applicable provisions of paragraph
4(d), except that for purposes of this paragraph 9(c) only, the Incentive Bonus
Plan payment amount shall be the average of the bonus paid in the three prior
years, but in any event not less than seventy-five percent (75%) of Executive's
then current base salary, will apply; however, the amount of the severance
payment due Executive pursuant to this paragraph 9(c) shall be double the amount
calculated under the terms of paragraph 4(d). Health and welfare benefits shall
be extended for a two (2) year term at the Company's expense.
(d) If, on or within one year following the effective date of a Change
in Control, the Company (a) terminates Executive's employment other than for
cause, or (b) reduces Executive's salary, duties or authority which Executive
elects not to accept, then Executive shall terminate and receive from the
Company the same amount and health and welfare benefits which Executive would
have received pursuant to a termination under paragraph 9(b) above. If the
Company requires Executive to relocate from ___________ and Executive elects not
to relocate, then Executive shall terminate and receive from the Company the
same amount and health and welfare benefits which Executive would have received
pursuant to a termination under paragraph 9(c) above.
(e) A "Change in Control" shall be deemed to have occurred if:
(i) any person, other than CLC or an executive benefit plan of
CLC, acquires directly or indirectly the Beneficial Ownership (as
defined in Section 13(d) of the Securities Exchange Act of 1934, as
amended) of any voting security of CLC (not including the voting
securities of any subsidiary of CLC) and immediately after such
acquisition such Person is, directly or indirectly, the Beneficial
Owner of voting securities representing 50% or more of the total voting
power of all of the then-outstanding voting securities of CLC.
(ii) the individuals (A) who, as of the effective date of
CLC's registration statement with respect to its initial public
offering, constitute the Board of Directors of CLC (the "Original
Directors") or (B) who thereafter are elected to the Board of Directors
of CLC and whose election, or nomination for election, to the Board of
Directors of CLC was approved by a vote of at least two-thirds (2/3) of
the Original Directors then still in office (such directors becoming
"Additional Original Directors" immediately following their election)
or (C) who are elected to the Board of Directors of CLC and whose
election, or nomination for election, to the Board of Directors of CLC
was approved by a vote of at least two-thirds (2/3) of the Original
Directors and Additional Original Directors then still in office (such
directors also becoming "Additional Original Directors" immediately
following their election) (such individuals being the "Continuing
Directors"), cease for any reason to constitute a majority of the
members of the Board of Directors of CLC;
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(iii) the stockholders of CLC shall approve a merger,
consolidation, recapitalization, or reorganization of CLC a reverse
stock split of outstanding voting securities, or consummation of any
such transaction if stockholder approval is not sought or obtained,
other than any such transaction which would result in at least 75% of
the total voting power represented by the voting securities of the
surviving entity outstanding immediately after such transaction being
Beneficially Owned by at least 75% of the holders of outstanding voting
securities of CLC immediately prior to the transaction, with the voting
power of each such continuing holder relative to other such continuing
holders not substantially altered in the transaction; or
(iv) the stockholders of CLC shall approve a plan of complete
liquidation of CLC or an agreement for the sale or disposition by CLC
of all or a substantial portion of CLC's assets (i.e., 50% or more of
the total assets of CLC).
(f) Executive must be notified in writing by CLC at any time that CLC
anticipates that a Change in Control may take place.
(g) If it shall be finally determined that any payment made or benefit
provided to Executive in connection with a Change in Control of CLC is subject
to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986,
as amended, or any successor thereto, the Company shall pay Executive an amount
of cash (the "Additional Amount") such that the net amount received by Executive
after paying all applicable taxes (and any interest and penalties imposed with
respect thereto) on such Additional Amount shall be equal to the amount that
Executive would have received if Section 4999 were not applicable.
10. NO PRIOR AGREEMENTS
Executive hereby represents and warrants to CLC and the Company that
the execution of this Agreement by Executive and his employment by the Company
and the performance of his duties hereunder will not violate or be a breach of
any agreement with a former employer, client or any other person or entity.
Further, Executive agrees to indemnify CLC and/or the Company for any claim,
including, but not limited to, reasonable attorneys' fees and expenses of
investigation, by any such third party that such third party may now have or may
hereafter come to have against CLC and/or the Company based upon or arising out
of the final nonappealable determination of a court of competent jurisdiction
that Executive has breached or violated the terms of any non-competition
agreement, invention or secrecy agreement between Executive and a third party
which was in existence as of the date of this Agreement.
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11. ASSIGNMENT: BINDING EFFECT
Executive understands that he has been selected for employment by the
Company on the basis of his personal qualifications, experience and skills.
Executive agrees, therefore, that he cannot assign all or any portion of his
performance under this Agreement. Subject to the preceding two sentences and the
express provisions of paragraph 12 below, this Agreement shall be binding upon,
inure to the benefit of and be enforceable by the parties hereto and their
respective heirs, legal representatives, successors and assigns. This Agreement
may not be assigned by CLC or the Company except in a Change of Control pursuant
to paragraph 9.
12. NO MITIGATION OR OFFSET
Executive shall not be required to mitigate the amount of any Company
payment provided for in this Agreement by seeking other employment or otherwise.
The amount of any payment required to be paid to Executive by the Company
pursuant to this Agreement shall not be reduced by any amounts that are owed to
the Company or CLC by Executive, or by any setoff, counterclaim, recoupment,
defense or other claim, right or action.
13. RELEASE
Notwithstanding anything in this Agreement to the contrary, Executive
shall not be entitled to receive any payments pursuant to this Agreement (other
than payments pursuant to paragraph 2 above) unless Executive has executed (and
not revoked) a general release of all claims Executive may have against CLC, the
Company and their affiliates in a form of such release reasonably acceptable to
CLC.
14. INDEMNIFICATION
In the event Executive is made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative,
environmental or investigative (other than an action by CLC or the Company
against Executive), by reason of the fact that he is or was performing services
under this Agreement, then the Company shall indemnify Executive against all
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement, as actually and reasonably incurred by Executive in connection
therewith. In the event that both Executive and the Company are made a party to
the same third-party action, complaint, suit or proceeding, the Company agrees
to engage competent legal representation, and Executive agrees to use the same
representation, provided that if counsel selected by the Company shall have a
conflict of interest that prevents such counsel from representing Executive,
Executive may engage separate counsel and the Company shall pay all attorneys'
fees and reasonable expenses of such separate counsel. Further, while Executive
is expected at all times to use his best efforts to faithfully discharge his
duties under this Agreement, Executive cannot be held liable to the Company for
errors or omissions made in good faith where Executive has not exhibited gross,
willful and wanton negligence and misconduct
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nor performed criminal and fraudulent acts which materially damage the business
of the Company. The parties acknowledge and agree that the provisions of this
paragraph 14 are in addition to any other rights of indemnification that
Executive is entitled to as a director, officer or employee of the Company
pursuant to the charter, bylaws or other arrangements between the Company and
its directors, officers and employees.
15. COMPLETE AGREEMENT
Executive has no oral representations, understandings or agreements
with CLC, the Company or any of their officers, directors or representatives
covering the same subject matter as this Agreement. This written Agreement is
the final, complete and exclusive statement and expression of the agreement
between CLC, the Company and Executive and of all the terms of this Agreement,
and it cannot be varied, contradicted or supplemented by evidence of any prior
or contemporaneous oral or written agreements. This written Agreement may not be
later modified except by a further writing signed by a duly authorized officer
of CLC, the Company and Executive, and no term of this Agreement may be waived
except by writing signed by the party waiving the benefit of such term. Without
limiting the generality of the foregoing, any party's failure to insist on
strict compliance with this Agreement shall not be deemed a waiver thereof.
16. NOTICE
Whenever any notice is required hereunder, it shall be given in writing
addressed as follows:
If to CLC or the Company:
Chemical Logistics Corporation
Attn: Chief Executive Officer
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
If to Executive:
Notice shall be deemed given and effective on the earlier of three days
after the deposit in the U.S. mail of a writing addressed as above and sent
first class mail, certified, return receipt requested, or when actually
received. Either party may change the address for notice by notifying the other
party of such change in accordance with this paragraph 16.
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17. SEVERABILITY: HEADINGS
If any portion of this Agreement is held invalid or inoperative, the
other portions of this Agreement shall be deemed valid and operative and, so far
as is reasonable and possible, effect shall be given to the intent manifested by
the portion held invalid or inoperative. The paragraph headings herein are for
reference purposes only and are not intended in any way to describe, interpret,
define or limit the extent or intent of this Agreement or of any part hereof.
18. DISPUTE RESOLUTIONS
Except with respect to injunctive relief as provided in paragraph 3(b),
neither party shall institute a proceeding in any court or administrative agency
to resolve a dispute between the parties before that party has sought to resolve
the dispute through direct negotiation with the other party. If the dispute is
not resolved within two weeks after a demand for direct negotiation, the parties
shall attempt to resolve the dispute through mediation. If the parties do not
promptly agree on a mediator, the parties shall request the Association of
Attorney Mediators in Houston, Texas to appoint a mediator certified by the
appropriate Court of Texas. If the mediator is unable to facilitate a settlement
of the dispute within a reasonable period of time, as determined by the
mediator, the mediator shall issue a written statement to the parties to that
effect and any unresolved dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration, conducted
before a panel of three arbitrators in Houston, Texas, in accordance with the
National Rules for the Resolution of Employment Disputes promulgated by the
American Arbitration Association then in effect. The arbitrators shall have the
authority to order back-pay, severance compensation, vesting of options (or cash
compensation in lieu of vesting of options), reimbursement of costs, including
those incurred to enforce this Agreement, and interest thereon in the event the
arbitrators determine that Executive was terminated without disability or good
cause, as defined in paragraphs 4(b) and 4(c), respectively, or that the Company
has otherwise materially breached this Agreement. A decision by a majority of
the arbitration panel shall be final and binding. Judgment may be entered on the
arbitrators' award in any court having jurisdiction. The costs and expenses,
including reasonable attorneys' fees, of the prevailing party in any dispute
arising under this Agreement will be promptly paid by the other party.
19. GOVERNING LAW
This Agreement shall in all respects be construed according to the laws
of the State of Texas without regard to its conflicts of law provisions.
20. COUNTERPARTS
This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective for all purposes as of the Effective Date.
CHEMICAL LOGISTICS CORPORATION
By:
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Name:
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Title:
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[FOUNDING COMPANY]
By:
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Name:
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Title:
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EXECUTIVE
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