EXHIBIT 10.37
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of September 15, 1996 by and between Waste Technology
Corp., a Florida Corporation with offices at 0000 Xxx Xxxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxx 00000 ("Employer") and Xxxxxxxx Xxxxx ("Employee"). The
term of employment shall commence on the 1st day of October, 1996 and shall end
on the 30th day of September, 2001.
RECITALS
WHEREAS, Employer desires to retain the services of Employee upon the
terms and conditions stated herein; and
WHEREAS, Employee desires to be employed by Employer upon the terms and
conditions stated herein;
NOW, therefore, in consideration of the mutual promises and covenants
contained herein, the parties agree as follows:
1. Employment Term. Employer herewith employs Employee as President and
Chief Executive Officer of Employer for a period of five years from the date
hereof.
2. Duties. Employee's duties shall involve the supervision and operation
of the Employer's business and such other executive duties as may be determined
by the Employer's Board of Directors.
3. Compensation. Employee shall receive as compensation per annum $150,034
for the first year. Such compensation shall be increased by 5% over the previous
year's compensation as follows: the second year's compensation shall be
$157,536, the third year's compensation shall
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be $165,413, the fourth year's compensation shall be $173,684, and the fifth
year's compensation shall be $182,368. In the event the company is not
profitable in any year, the Board of Directors shall have the right, in its
discretion, to defer the 5% increase earned during that year. Any increase in
income which has been deferred shall be carried forward and paid in the next
profitable fiscal year, and paid at the end of such fiscal year in lump sum.
Compensation payable to the Employee shall be paid in weekly installments or as
the parties may hereafter mutually agree in writing. In addition to the
aforesaid compensation, the Employee shall be included in the major medical
insurance program maintained by the Employer, and the Employer shall continue
funding the deferred compensation agreement for the Employee which is now in
full force and effect.
4. Reimbursement of Expenses. Employee shall be entitled to reimbursement
for all reasonable actual out-of-pocket expense related to Employer's business,
including costs associated with the operation and maintenance of an automobile
leased for the benefit of the Employee. All such expenses shall be
substantiated.
5. Takeover, mergers, etc. In the event of a xxxxxx, consolidation, sale
of substantially all of the assets of the Employer, or a sale of either majority
or plurality control of the stock in the Employer, the Employee shall have the
option to allow this Agreement to remain a binding obligation of the Employer
and the surviving or successor corporation, or, receive at the time of merger,
consolidation, or sale a sum equal to the compensation set forth in paragraph 3
of this Agreement for the remainder of the Employee's term of employment as
provided in paragraph 1 hereof, together with prepayment of insurance premiums
for a policy of health and disability insurance for the benefit of the Employee
and his wife for the unexpired portion of the Employee term of employment, which
policy shall provide benefits equal to, or greater than, those which now
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protect the Employee and his wife.
7. Disability. In the event that Employee should become permanently
disabled as that term is hereinafter defined, and such disability shall continue
for a period in excess of ninety consecutive business days, Employee's
compensation shall be reduced to fifty percent of his regular compensation until
such time as he resumes regular employment. In the event such disability shall
continue for a period in excess of one year, this Agreement shall terminate. The
term "permanently disabled" shall mean the inability of the Employee to perform
substantially all of his regular duties as an Employee of the Employer. Employer
shall provide Employee with the highest amount of disability insurance to the
extent available. Termination of the Employee's employment hereunder shall be
equivalent to retirement for all purposes.
8. Discharge. Employee may not be discharged except for cause. In the
event of a dismissal for cause, Employee shall be entitled to a statement
setting forth the nature of the cause alleged and the facts which constitute the
cause. For purpose of this Paragraph, the term "cause" shall mean either a
failure of Employee to perform his regular duties, without reasonable cause for
a substantial period of time (other than because of Employee's disability) or
the Employee's breach of his fiduciary obligation to the Employer or of the
provisions of this Agreement. Not withstanding anything to the contrary
hereinabove contained, the Employee shall not be discharged for cause unless the
Employer shall give the Employee written notice of the act or omission
constituting the cause, and the Employee shall not have rectified same within
ten (10) days after the receipt thereof, and if such cause can not be reasonably
rectified within ten (10) days of the receipt of such notice, if the Employee
has not substantially initiated the cure thereof and thereafter diligently
pursues and completes the cure of same.
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9. Non-Competition. During the term of this Agreement and for a period of
two years after the termination thereof, Employee agrees that he will not engage
in a similar business to the business then being conducted by the Employer,
either directly or indirectly, as owner, shareholder, partner, joint venturer,
employee, officer, director or consultant, within the eastern half of the United
States, east of the Mississippi River. The Employee recognizes that damages may
be difficult to establish and accordingly consents to the entry of an injunction
preventing him from violating the provisions of this Paragraph. In the event
that a Court of competent jurisdiction should determine that the restrictions
proved in this paragraph are unreasonably broad, this Paragraph shall be
modified to restrict the area to which, and the period for which this Paragraph
shall be applicable to such area and such period as such court shall deem to be
reasonable. This paragraph shall be inapplicable if Employer terminates this
Agreement without cause of if the Employer breaches this Agreement.
10. No Waiver. The failure of the parties here to enforce any provision
hereof on any occasion shall not be deemed to be a waiver of any preceding or
succeeding breach of such provisions or of any other provision.
11. Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties hereto and no amendment, modification or waiver of
any provision herein shall be effective unless in writing, executed by the party
to be charge therewith.
12. Notices. Any notice given pursuant to the terms of this Agreement
shall be given by registered or certified mail, return receipt requested,
directed to the addresses set forth above, unless notice of a new address has
been sent pursuant to the terms of the Partnership.
13. Unenforceability; severability. If any provision of this Agreement is
found void
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or unenforceable by a court of competent jurisdiction, the remaining provisions
of this Agreement shall nevertheless be binding upon the parties with the same
force and effect as though the unenforceable part has been severed and deleted.
14. Governing Law. This Agreement shall be construed, interpreted and
enforced in accordance with and shall be governed by the laws of the State of
Florida applicable to agreement to be wholly performed therein.
15. Binding Effect. This Agreement shall bind and inure to the benefit of
the partied, their successors and assigns.
16. Assignment and Delegation of Duties. This Agreement may not be
assigned by the parties hereto. This Agreement is in the nature of a personal
services contract and the duties imposed hereby are non-delegable.
17. Attorney's Fees. In the event of litigation between the parties, the
prevailing party shall recover its reasonable court costs and attorney's fees
from the other, including but not limited to reasonable attorney's fees and
costs on appeal.
18. Paragraph Headings. The paragraph headings herein have been inserted
for convenience of reference only, and shall in no way modify or restrict any of
the terms or provisions hereof.
19. Notice. Whenever notice is required to be given to the Employee, same
shall be given in writing and delivered to the employee by certified mail,
return receipt requested, postage prepaid, at X.X. Xxx 0000, Xxxxxxxxxxxx,
Xxxxxxx 00000, or at such other address as the Employee shall designate to the
Employer in writing.
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20. This agreement supersedes and negates any prior Employment Agreement
between Employer and Employee and Employer's subsidiaries including
International Baler Corporation. As of October 1, 1996 the employment agreement
between Employee and International Baler Corporation dated September 1, 1993 is
void and is of no force and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement the 15th day
of September, 1996.
WASTE TECHNOLOGY CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Exec. V.P. Secretary and Counsel
/s/ Xxxxxxxx X. Xxxxx
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Xxxxxxxx X. Xxxxx
President & Chief Executive Officer
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