EXHIBIT 10.49
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into effective the first
day of October, 2000 by and between JLM Industries, Inc. ("Company" or
"Employer") and Xxxxxxx X. Xxxxx ("Executive" or "Employee").
WHEREAS, the Executive desires to serve as Chief Financial Officer and Vice
President of the Company; and
WHEREAS, the Company desires to employ the Executive as Chief Financial
Officer and Vice President of the Company upon the terms and conditions
specified in this Agreement and the Executive desires to serve as Chief
Financial Officer and Vice President upon the terms and conditions specified in
this Agreement; and
NOW WHEREFORE in consideration of the mutual covenants herein, the parties
state and agree as follows:
1. Employment. The Company hereby agrees to employ the Executive and the
Executive hereby agrees to remain in the employ of the Company upon the
terms and conditions herein set forth.
2. Term. Employment shall be for a term commencing on the effective date
hereof and, subject to termination as provided herein, expiring on
September 30, 2003. Upon expiration, this Agreement shall renew for
consecutive one year terms unless either party gives the other party
written notice of its intent not to renew at least sixty days prior to the
expiration of the original or any successive or extended term.
3. Duties.
a. Assignments. The Employee agrees to accept the duties commonly
involved in carrying out the position for which employed and any other
duties as may be required by Employer. The Employer shall have the
right at any time during the term of this Agreement to change the
duties of Employee or assign duties different from the duties
originally assigned.
b. Best Efforts. The Employee shall devote his best efforts, on a
full-time basis, to the Employer's business, and will not engage in
any employment or enterprise detracting from this goal. Employee shall
travel as reasonably required in the performance of his duties
hereunder.
c. Reporting. The Employee as Chief Financial Officer and Vice President,
and in such other offices as from time to time assigned in the Company
or associated enterprises, shall perform the duties of Chief Financial
Officer and Vice President which shall consist of the duties normally
associated with such positions and such other duties as shall be from
time to time assigned. In the regular conduct of his duties the
Employee shall report to and be responsible to the Chief Executive
Officer, or such other officer of the Company, as the Chief Executive
Officer may direct.
d. Place of Performance. In connection with his employment by the
Company, the executive shall be based at the principal executive
offices of the Company which as of the date of this Agreement are in
Tampa, Florida or at such other location as the Chief Executive
Officer may specify.
e. Board of Directors. The Company will use its best efforts to have
Executive elected a member of the Board of Directors during his
employment hereunder.
4. Compensation.
a. Base Salary. During the term of this Agreement, the Company shall pay
to the Executive a base salary ("Base Pay") of not less than $190,000
per annum which Base Salary shall be reviewed annually by the Chief
Executive Officer and the Compensation Committee and may be increased,
or decreased (but not below the aforementioned amount) upon
recommendation of the Chief Executive Officer to the Compensation
Committee. Further, the Compensation Committee upon recommendation of
the Chief Executive Officer may in its sole discretion determine to
pay the Executive additional compensation in cash or property as may
be determined from time to time. Base Pay will be paid in accordance
with the normal payroll practices of the Company, but not less
frequently than monthly.
b. Bonus The executive shall participate in any bonus plans or similar
incentive compensation programs established by Employer from time to
time.
c. Stock Options. The Executive is granted options to purchase up to
45,000 shares of the Company's common stock. Such options shall vest
at the rate of 15,000 shares per year, provided the Executive is
employed hereunder. Said options shall have an exercise price of $5.00
per share and shall be issued subject to and in accordance with the
Company's Stock Option Plan.
d. Restricted stock. During the three-year term of this agreement,
provided the executive is employed hereunder, on September 30 of each
year, the Executive shall be awarded 10,000 shares of the Company's
common stock. Said shares shall be issued subject to and in accordance
with Company's Stock Option Plan.
5. Benefits.
a. 401(k) Plan. Employer has established a 401(k) Profit Sharing Plan to
provide for voluntary before and after tax contributions by the
employees of the Company. The Profit Sharing Plan may also provide for
Employer contributions as may be from time to time determined by the
Employer consistent with and subject to the terms of the plan as
established by the Employer. The Executive may participate in such
plan provided he is otherwise qualified under the terms and conditions
of any such Profit Sharing Plan.
b. Vacation. The Executive shall receive 20 days of paid vacation per
year accruing at a rate of 1 2/3 vacation days per month. Any vacation
days accrued but not used in the calendar year earned shall carry over
for use in future years except in no event shall the Executive
accumulate more than 40 days of vacation time.
c. Health Insurance. The Employee shall be entitled to participate in the
regular Health Insurance plan of the Employer as from time to time in
effect on the terms and conditions as provided for employees
generally.
d. Disability. The Employee shall be entitled to participate in the
regular disability plan of the Employer as from time to time in effect
on the terms and conditions as provided for employees generally.
e. Automobile. The Employer shall provide a car allowance of $600 per
month for business use to be accounted for by the Employee consistent
with the normal business practices of Employer as from time to time
established.
f. Expenses. The Employer shall provide an expense allowance of $200 per
month for business use to be accounted for by the Employee consistent
with the normal business practices of Employer as from time to time
established.
g. Other Benefits. The Executive shall be entitled to participate in such
other employee benefit and welfare plans as the Company may from time
to time establish subject to the terms, conditions and eligibility
requirements as the Company shall prescribe.
6. Termination.
a. Involuntary Termination. The Executive will be treated for the
purposes of this Agreement as having been involuntarily terminated
("Involuntary Termination") by the Company if his employment is
terminated under any of the following circumstances:
i. the Company has breached any material provision of this
Agreement and within 30 days after written notice thereof
from the Executive the Company fails to cure such breach; or
ii. at the expiration of the term of employment hereunder the
Company has notified the Executive pursuant to 2 that the
Company intends not to renew the term of employment; or
iii. the Executive is required to report directly to any officer
of the Company other than the Chief Executive Officer; or
iv. the Board of the Company gives the Executive notice of
termination pursuant to this paragraph (P. 6-a-iv).
b. Voluntary Termination. The Executive's employment shall be deemed to
have been voluntarily terminated if Executive's employment is
terminated in any of the following circumstances:
i. Upon ninety (90) days' written notice to the Company of the
Executive's intent to terminate this Agreement; or
ii. The termination of the Executive's employment upon the death
of the Employee.
c. Termination for Cause. The Executive shall be deemed to have been
terminated for Cause if the employment of the Executive is terminated
by written notice in any of the following circumstances:
i. the willful and continued failure by the Executive to
perform substantially his duties hereunder (other than from
any such failure due to the Executive's Disability) which
failure shall continue for 30 days after notice for such
substantial performance is provided to the Executive
specifying the manner in which the Company believes the
Executive has not substantially performed; or
ii. the willful misconduct of the Executive which is materially
injurious to the Company either financially or otherwise; or
iii. the breach of the Confidentiality and Nonsolicitation
provisions of this Agreement set forth at 8; or
iv. the Executive terminates his employment without giving the
notice required by 6-b-i.
d. Termination for Disability. The Executive shall be deemed to have been
terminated for Disability if the employment of the Executive is
terminated for his incapacity due to physical or mental illness to
substantially perform his duties on a full-time basis for six (6)
months and, within thirty (30) days after a notice of termination is
thereafter given by the Company, the Executive shall not have returned
to the full-time performance of the Executive's duties; provided,
however, if the Executive shall not agree with a determination to
terminate him because of Disability, the question of Executive's
disability shall be subject to the certification of a qualified
medical doctor agreed to by the Company and the Executive or, in the
event of the Executive's incapacity to designate a doctor, the
Executive's legal representative. In the absence of agreement between
the Company and the Executive, each party shall nominate a qualified
medical doctor and the two doctors shall select a third doctor, who
shall make the determination as to Disability.
7. Termination Benefits and Payments.
a. Involuntary Termination and Termination for Disability. In the event
of the termination of the Executive's employment pursuant to the
provisions of 6-a or 6-d then all previously awarded options shall be
fully vested and exercisable in accordance with their terms when
issued and all previously granted shares of stock shall be fully
vested and shall remain subject to such restrictions on transfer in
place as of the date of the Executive's termination and the Executive
shall be entitled to the following benefits and termination payments:
i. Unpaid Amounts. All accrued but unpaid Base Pay including credit
for unused vacation days limited in accordance with P. 5-b
payable within 10 days of the date of termination, plus
ii. Base Pay. Payable within 10 days of the date of termination the
greater of one year's Base Pay or the remaining amount of Base
Pay due to the Executive through the end of the term hereof both
computed at the Executive's highest annualized rate of Base Pay
during the three year period prior to termination, plus
iii. Benefits. For the balance of the remaining term of this Agreement
at the date of Termination of the Executive's employment
("Termination Period") the Company shall maintain in full force
and effect for the continued benefit of the Executive all
employee welfare benefit plans and prerequisite programs in which
the Executive was entitled to participate immediately prior to
the Executive's termination or shall arrange to make available to
the Executive benefits substantially similar to those which the
Executive would otherwise have been entitled to receive if his
employment had not been terminated. Such benefits shall be
provided to the Executive on the same terms and conditions
(including employee contributions and premium payments) under
which the Executive was entitled to participate immediately prior
to the Executive's termination. Notwithstanding the foregoing for
the purposes of the Consolidated Omnibus Budget Reconciliation
Act of 1985 ("Cobra") the Executive's "qualifying event" shall be
his date of termination from the Company. During the first thirty
days of the Termination Period, the Company shall provide to the
Executive at the Company's expense office space and staff support
similar to that provided immediately prior to termination.
iv. Reduction of Termination Payments. In the event termination of
the Executive's employment is pursuant to the provisions of 6-d,
then any amounts otherwise payable to the Executive pursuant to
the terms of 7-a ii shall be payable monthly during the
Termination Period and shall be subject to offset for any after
tax amounts received by the Executive pursuant to a plan
maintained by the Employer as described at 5-f, if any.
b. Voluntary Termination and Termination for Cause. In the event of the
termination of the Executive's employment pursuant to the provisions
of 6-b or 6-c, then the Executive shall be entitled to all accrued but
unpaid Base Pay including credit for unused vacation days limited in
accordance with 5-b payable within 10 days of the date
of termination.
8. Confidentiality and Nonsolicitation Agreement
a. Confidentiality. The Executive acknowledges that in the course of his
employment by the Company, he will or may have access to and become
informed of confidential and secret information which is a competitive
asset of the Company ( "Confidential Information"), including, without
limitation, (i) the terms of any agreement between the Company and any
employee, customer, or supplier, (ii) pricing strategy, (iii)
merchandising and marketing methods, (iv) product ideas and
strategies, (v) personnel training and development programs, (vi)
financial results, (vii) strategic systems software, and (viii) any
non-public information concerning the Company, its employees,
suppliers or customers, The Executive agrees that he will keep all
Confidential Information in strict confidence during the term of his
employment by the Company and thereafter and will not directly or
indirectly make known, divulge, reveal, furnish, make available, or
use any Confidential Information (except in the course of his regular
authorized duties on behalf of the Company). The Executive agrees that
the obligations of confidentiality hereunder shall survive termination
of his employment at the Company regardless of any actual or alleged
breach by the Company of this Agreement and shall continue for two
years following such termination provided that such obligation shall
terminate earlier (i) as to specific information that shall have
become, through no fault of the Executive, generally known to the
public or (ii) as to the Confidential Information which the executive
is required by law to disclose (after giving the Company notice and an
opportunity to contest such requirement). The Executive's obligation
under this 8 are in addition to, and not in limitation or preemption
of, all other obligations of confidentiality which the executive may
have to the Company under general legal or equitable principles.
b. Documents. Except in the ordinary course of the Company's business,
the Executive shall not at any time following the date of this
Agreement, make or cause to be made, any copies, pictures, duplicates,
facsimiles or other reproductions or recordings or any abstracts or
summaries including or reflecting Confidential Information. All such
documents and other property furnished to the Executive by the Company
or otherwise acquired or developed by the Company shall at all times
be the property of the Company. Upon termination of the Executive's
employment by the Company, the Executive will return to the Company
any such documents or other property of the Company which are in the
possession, custody or control of the Executive.
c. Nonsolicitation. In the event of the Executive's termination of
employment for any reason, the Executive agrees that he will not in
any capacity, on his own behalf or on behalf of any other firm, person
or entity, for a period of two years, solicit, or assist in the
solicitation of, any employee of the Company to terminate his or her
employment with the Company.
d. Injunctive Relief. The Executive acknowledges and agrees that a
violation of the foregoing provisions of this 8 (referred to
collectively as the Confidentiality and Nonsolicitation Agreement)
that results in material detriment to the Company would cause harm to
the Company, and that the Company's remedy at law for any such
violation would be inadequate. In recognition of the foregoing, the
executive agrees that, in addition to any other relief afforded by law
or this Agreement, including damages sustained by a breach of this
Agreement and any other forfeitures under 8, and without any
necessity or proof of actual damages, the Company shall have the right
to enforce this permanent injunction, it being the understanding of
the undersigned parties hereto that damages, the forfeitures described
above and injunctions shall all be proper models of relief and are not
to be considered as alternative remedies.
9. Covenant Not to Compete.
a. During the term of this Agreement, the Employee shall not, directly or
indirectly, either as an employee, employer, consultant, agent,
principal, partner, stockholder, corporate officer, director or in any
other individual or representative capacity, engage or participate in
any business of any nature which is in competition in any way with the
business of the Employer.
b. For a period of one year after the expiration or termination of this
Agreement, the Employee shall not, directly or indirectly, either as
an employee, employer, consultant, agent, principal, partner,
stockholder, corporate officer, director or in any other individual or
representative capacity, engage or participate in any business of any
nature which is in competition with the Employer within the existing
market areas of the Employer for which Employee had significant
responsibility and in which Employee materially participated in the
management and operation of the Employer
c. Employer shall be entitled to injunctive and/or other equitable relief
to prevent or remedy a breach of the provisions of the Agreement and
to secure their enforcement, in addition to any other remedies or
damages which may be available to Employer.
10. Miscellaneous.
a. Arbitration. Any dispute between the Executive and the Company under
this Agreement shall be resolved (except as provided below) through
arbitration by an arbitrator selected under the rules of the American
Arbitration Association and the arbitration shall be conducted in
Tampa, Florida under the rules of said association. Each party shall
each be entitled to present evidence and argument to the arbitrator.
The arbitrator shall have the right only to interpret and apply the
provisions of this Agreement and may not change any of its provisions.
The arbitrator shall permit reasonable' pre-heating discovery of
facts, to the extent necessary to establish a claim or a defense to a
claim, subject to supervision by the arbitrator. The determination of
the arbitrator shall be conclusive and binding upon the parties and
judgement upon the same may be entered in any court having
jurisdiction thereof. The arbitrator shall give written notice to the
parties stating his or their determination, and shall furnish to each
party a signed copy of such determination. Notwithstanding the
foregoing, the Company shall not be required to seek or participate in
arbitration regarding any breach of the Executive's Confidentiality
and Nonsolicitation Agreement contained in 8, but may pursue its
remedies for such breach in a court of competent jurisdiction. The
party failing to substantially prevail in any proceeding arising out
of this Agreement shall bear the reasonable expenses of the other
including, but not limited to, preparation and attending the
proceeding, the reasonable attorney fees and allocable cost of
inhouse counsel and any other expenses incurred by the other party.
This Agreement shall be governed and construed in accordance with the
laws of the State of Florida, excluding principles of conflict of
laws.
b. Agreement. This Agreement supersedes any and all other agreements,
either oral or in writing, between the parties hereto with respect to
the subject matter hereof and contains all of the covenants and
agreements between the parties with respect to such subject matter.
Each party to this Agreement acknowledges that no representation,
inducements, promises, or other agreements, orally or otherwise, have
been made by any party, or anyone acting on behalf of any party,
pertaining to the subject matter hereof, which are not embodied
herein, and that no other agreement, statement, or promise pertaining
to the subject matter hereof that is not contained in this Agreement
shall be valid or binding on either party.
c. No Obligation to Mitigate. After termination the Executive is under no
obligation to mitigate damages or the amount of any payment provided
for hereunder by seeking other employment or otherwise. The Executive
shall notify the Company within thirty (30) days after the
commencement of any such benefits.
d. Withholding of Taxes. The Company may withhold from any amounts
payable under this Agreement all federal; state, city or other taxes
as the Company is required to withhold pursuant to any law or
government regulation or ruling.
e. Post-termination Assistance. The Executive agrees that after his
employment with the Company has terminated he will provide, upon
reasonable notice from the Company, such information and assistance to
the Company as may reasonably requested by the Company in connection
with any litigation in which it or any of its affiliates is or may
become a party; provided, however, that the Company agrees to
reimburse the executive for any related expenses, including travel
expenses. Further, if requested by the Employer, the Employee agrees
to cooperate in training his successor following notice of termination
of this Agreement.
f. Successors and Binding Agreement
i. This Agreement will be binding upon and inure to the benefit
reorganization or otherwise (and such successor shall thereafter
be deemed the "Company" for the purpose of this Agreement), but
will not otherwise be assignable, transferable or delegable by
the Company.
ii. This Agreement will inure to the benefit of and be enforceable by
the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributes, and legatees.
iii. This Agreement is personal in nature and neither of the parties
hereto shall, without the consent of the other, assign, transfer
or delegate this Agreement.
g. Notices. For all purposes of this Agreement, all communications,
including without limitation notices, consents, requests, or
approvals, required or permitted to be given hereunder will be in
writing and will be deemed to have been duly given when within five
days of posting by registered or certified United States mail, return
receipt requested, postage prepaid, addressed to the Company (to the
attention of the President of the Company) at its principal executive
office with a copy to Xxxxxxx Xxxxxxxxx, Esq. 000 Xxxx Xxxxxx, Xxx
Xxxx, XX 00000 and to the Executive at his principal residence, or to
such other address as any party may have furnished to the other in
writing and in accordance herewith, except that notices of changes
shall be effective only upon receipt.
h. Validity. If any provision of this Agreement or the application of any
provision hereof to any person or circumstances is held invalid,
unenforceable or otherwise illegal, the remainder of this Agreement
and the application of such provision to any other person or
circumstances will not be affected, and the provision so held to be
invalid, unenforceable or otherwise illegal will be reformed to the
extent (and only to the extent) necessary to make it enforceable,
valid or legal.
i. Modification. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed
to in writing signed by the Executive and the Company. No waiver by
either party hereto at any time of any breach by the other party
hereto or compliance with any condition or provision of this Agreement
to be performed by such other party will be deemed a waiver of similar
or dissimilar provisions or conditions at that same or at any prior
subsequent time. Unless otherwise noted, references to "Sections" are
to sections of this Agreement. The captions used in this Agreement are
designed for convenient reference only and are not to be used for the
purpose of interpreting any provision of this Agreement.
j. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all
of which together will constitute one and the same agreement.
Date: September , 2000
JLM Industries, Inc. Employee
____________________________ ___________________________
Xxxx X. Xxxxxxxxx, President Xxxxxxx X. Xxxxx
