EMPLOYMENT AGREEMENT
AGREEMENT made this 18th day of January, 1996, between Trident
Environmental Industries, Inc., a Florida corporation, hereinafter sometimes
called the "Employer", having its principal place of business in West Palm
Beach, Florida, and Xxxxxx Xxxxxxx, of Palm Beach, Florida, hereinafter
sometimes called the "Employee".
WHEREAS, the Employee and Employer desire to set forth in writing their
contract with respect to Employee's employment by Employer;
NOW, THEREFORE, in consideration of their mutual promises set forth
herein, the parties hereby agree as follows:
1. EMPLOYMENT. Employer hereby employs Employee, and Employee hereby
accepts such employment, upon the terms and conditions set forth in this
Agreement.
2. DUTIES AND AUTHORITY.
A. Employee will occupy the position of President, (hereinafter
referred to as "Position" or "Assignment") with the Employer and may serve as a
Director of the Employer.
B. In this position, Employee will have the responsibility and
authority of Chief Executive Officer, subject to the control of the Board of
Directors, and have general supervision, direction and control, as necessary,
over the business and affairs of the Corporation and its Employees. Employee
will be primarily responsible for carrying out all orders and resolutions of the
Board of Directors and such duties as may from time to time be assigned to
Employee by the Board of Directors.
C. In the absence of the Chairman of the Board at any Shareholders or
Board of Directors meeting, Employee will preside over that Shareholders meeting
and, in the event Employee is then a Director of the Employer, will preside over
the Board of Directors meeting.
D. Employee agrees to devote his full time attention and best efforts
to the performance of employment hereunder.
3. TERM OF EMPLOYMENT. The term of employment shall begin on the date
of this Agreement, and shall extend for a period of 10 consecutive years or
until terminated as provided herein.
4. COMPENSATION. Employee will receive compensation during the term of
this Agreement as follows:
A. A base annual salary of Two Hundred fifty Thousand Dollars
($250,000) payable either bi-monthly or monthly at the discretion of the
Employer. The base salary shall be adjusted at the end of each year of
employment to reflect any change in the cost of living by multiplying the salary
for the prior year by a fraction, the numerator of which is the National
Consumer Price Index (NCPI) for the month most recently released by the Bureau
of Labor Statistics of the United States Department of Labor and the denominator
of which is the NCPI for the identical month in the preceding year. If this
index is discontinued, changed or unavailable, Employer shall determine and
utilize a similar criterion for reflecting any increase in the cost of living.
Additionally, at its discretion, the Board of Directors may elect to increase
Employees base annual salary at any time durring the term of this agreement.
B. An incentive salary (Bonus) equal to a minimum of three percent (3%)
of the adjusted net profits (hereinafter defined) of the Employer during each
fiscal year beginning or ending during the term of this Agreement. Said Bonus to
be paid to the Employee in cash or company stock or any combination thereof with
the method of payment to be at the sole discreaton of the Employee. "Adjusted
net profit" shall be the net profit before federal and state income taxes,
determined in accordance with accepted accounting practices by the independent
accounting firm employed by the Employer as auditors and adjusted to exclude:
(i) any incentive salary payments paid pursuant to this Agreement; (ii) any
contributions to pension and/or profit-sharing plans; (iii) any extraordinary
gains or losses (including, but not limited to, gains or losses on disposition
of assets); (iv) any refund or deficiency of federal and state income taxes paid
in a prior year; and (v) any provision for federal or state income taxes made in
prior years which is subsequently determined as unnecessary. The determination
of the adjusted net profits made by the independent accounting firm employed by
the Employer shall be final and binding upon Employee and the Employer. For the
first and last fiscal years ending and beginning, respectively, during the term
of this Agreement, the incentive salary shall be computed for the proportion of
the fiscal year coextensive with this Agreement. The incentive salary shall be
paid within sixty (60) days after the end of each fiscal year. The maximum
incentive salary payable for any one year shall not exceed two hundred percent
of Employee's base salary unless authorized by the Board of Directors.
C. The Board of Directors and the Employee may agree to waive the cost
of living adjustment in (A) above or the incentive pay in (B) above. Both
parties must agree to waive these requirements or the original clause shall
stand in effect.
D. Due to the nature of the Corporation's business and its
unpredictable cash flow; for the good of the Corporation and at the sole
discretion of the Employee, Employee may elect to (a) accept partial payment of
Employee's base salary and/or bonus in unrestricted, free-trading common stock
of the Corporation, or (b) accept partial payment of Employee's salary in cash
with the balance to be paid to Employee in cash upon demand at a later date.
Should Employee elect (a) above, the value of shares issued in lieu of cash
shall be determined by the bid price of the Corporation's common stock at the
close of the market on the Employee's scheduled payday as defined in 4. A. of
this agreement. The percentage, if any, of salary and/or bonus taken in stock in
lieu of cash is at the sole discretion of the Employee. Should Employee elect
(b) above, the percentage of salary Employee agrees to accept as partial payment
is at the sole discretion of Employee, as is the due date of the payment of any
balance of salary owed employee.
5. DEFERRED COMPENSATION. In the event that Employee retires after
performing services for the Employer up until Employee reaches the age of 65 or
retires at an earlier age with the approval of the Employer, Employee will be
entitled to deferred compensation payments after retirement upon the following
terms and conditions:
A. For a period of twenty (20) years ("Retirement Period") Employee
will receive all of the following: (i) Base Payments equal to thirty percent
(30%) of the average total salary (base salary plus incentive salary) paid to
Employee during the last three (3) full years of employment or based upon
his/her total period of employment, should that period be less that three (3)
full years, prior to the month of retirement ("Retirement Salary Base"); (ii)
Advisor Payments equal to thirty percent (30%) of the Retirement Salary Base,
provided that Employee serves as an advisor and consultant to the Employer
regarding its business. Employee will hold himself available to perform services
at reasonable times at the request of the Board of Directors of the Employer,
consistent with any business activities Employee may be engaged in at such time.
The Board of Directors of the Employer shall have the right to require the
presence of Employee at any Board of Directors meeting, not exceeding more than
one meeting per month, to act and serve in the advisory capacity. Attendance at
these Board of Directors meetings shall not be required should Employee's health
prevent attendance; however, Employer shall have the right to demand a written
statement from Employee prepared by a licensed medical examiner evidencing
inability of Employee to attend the meeting or meetings. Employee will be
reimbursed for all reasonable and necessary travel and incidental expenses
incurred by Employee in connection with the performance of advisory services;
and (iii) Non competition Payments equal to forty percent (40%) of the
Retirement Base Salary provided that Employee will not, directly or indirectly,
perform any business, commercial, or consulting
services to any person, firm, or organization or become associated as a manager,
Employee, director, or owner of any business organization competing directly or
indirectly with the Employer, whether or not compensated without the prior
written consent of Employer. In the event that Employer and Employee are unable
to agree on whether a particular business in which Employee attempts to engage
is directly or indirectly in competition with the Employer, the matter will be
submitted to arbitration under the provisions of Paragraph 22 of this agreement.
B. The deferred compensation payments shall be made in equal monthly
installments on the first day of each month, starting in the month following the
month of retirement.
C. In the Event of the death of Employee prior to the expiration of the
"Retirement Period", the Employer will pay all remaining Base Payments specified
in subparagraph A(i), and no other deferred compensation payments, to any
beneficiary of Employee designated by Employee in a written document filed with
the Employer, or in the absence of such designation, the estate of Employee. The
Employer may elect to pay these remaining Base Payments in a lump sum or in the
equal monthly installments specified in subparagraph B.
D. Employee shall not sell, assign, transfer, or pledge, or in any
other way dispose of or encumber, voluntarily or involuntarily, by gift,
testamentary disposition, inheritance, transfer to any inter-vivos trust,
seizure and sale by legal process, operation of law, bankruptcy, winding up of a
corporation, or otherwise, the right to receive any deferred compensation
pursuant to this Agreement.
6. RELOCATION. In the event Employee is transferred and assigned to a
new principal place of work located more than fifty (50) miles from Employee's
present residence, Employer will pay for all reasonable relocation expenses
including:
A. Transportation fares, meals, and lodging for Employee, his spouse,
and family from Employee's present residence to any new residence located near
the new principal place of work.
B. Moving of Employee's household goods and the personal effects of
Employee and Employee's family from Employee's present residence to the new
residence.
C. Lodging and meals for Employee and Employee's family for a period of
not more than sixty (60) consecutive days while occupying temporary living
quarters located near the new principal place of work.
D. Round trip travel, meals and lodging expenses for Employee's family
for no more than two (2) house hunting trips to locate a new residence, each
trip not to exceed fourteen (14) days; and
E. Expenses in connection with the sale of the residence of Employee
including Realtor fees, property appraisals, mortgage prepayment penalties,
termite inspector fees, title insurance policy and revenue stamps, escrow fees,
fees for drawing documents, state or local sales taxes, mortgage discount points
(if in lieu of a prepayment penalty), and seller's attorney's fees (not to
exceed one percent (1%) of the sales price). At the option of Employee and in
lieu of reimbursement for these expenses, Employee may sell the residence of
Employee to the Employer at the fair market value of the residence determined by
an appraiser chosen by the Employer. The appraisal will be performed within ten
(10) days after notice of transfer and notice of appraised value will be
submitted by report to Employee. Employee will have the right to sell the
residence to the Employer at the appraised price by giving notice of intent to
sell within thirty (30) days from the date of the appraisal report. The term
"residence" shall mean the property occupied by Employee as the principal
residence at the time of transfer and does not include summer homes,
multiple-family dwellings, houseboats, boats, or airplanes but does include
condominium or cooperative apartment units and duplexes (two family) occupied by
Employee.
7. MEDICAL AND GROUP INSURANCE. At the expense of the Employer,
Employer agrees to include Employee in the group medical and hospital plan of
Employer, when such plan is established, and will provide group life insurance
for Employee in the amount of not less than Three Hundred Fifty Thousand Dollars
($350,000) during the term of employment.
8. VACATION & SICK/PERSONAL LEAVE. For the first two (2) years of
employment, Employee shall be entitled to three (3) weeks of paid vacation
during each year of employment; for the third year and each year thereafter,
said vacation time shall increase to four (4) weeks during each year. The time
for the vacation shall be mutually agreed upon by Employee and Employer. If
vacation is not taken, for the benefit of the Employer, Employee shall be
compensated at one and one half (1 1/2) times his base salary rate for time not
taken. Employee shall receive 30 days Sick/Personal Leave for each year of
employment. Unused Sick/Personal Leave will accrue and be retained by Employee
to be used at his discretion.
9. AUTOMOBILE. AUTOMOBILE. Employer will provide to Employee, during
the term of this agreement, the use of a new luxury automobile of the Employees
choice, said automobile may be leased, rented or purchased by Employer at
Employer's discretion. Value of said automobile shall be determined by the
following guidelines: for the initial automobile; a vehicle that could normally
be purchased with a twenty percent (20%) down payment and total monthly payments
not to exceed $1,500.00 for a period of five (5) years. Employer will replace
the automobile with a new, comparable vehicle every two (2) years regardless of
necessary payment increases due to price increases of a comparable vehicle.
Employer will pay all automobile operating expenses incurred by Employee in the
performance of Employee's business
duties. The Employer will procure and maintain in force an automobile liability
policy for the automobile with coverage, including Employee, in the minimum
amount of One Million Dollars ($1,000,000) combined single limit on bodily
injury and property damage.
10. EXPENSE REIMBURSEMENT. Employee shall be entitled to reimbursement
for all reasonable expenses, including travel and entertainment, incurred by
Employee in the performance of Employee's duties. Employee will maintain records
and written receipts as required by federal and state tax authorities to
substantiate expenses as an income tax deduction for Employer and shall submit
vouchers for expenses for which reimbursement is made.
11. LOW INTEREST LOAN.
A. From time to time, Employee may borrow sums from Employer up to a
maximum aggregate of $350,000 provided the Employer has excess funds available
for such purposes. The Board of Directors shall establish the amount of such
funds available annually. Each loan shall be evidenced by a Promissory Note
payable in not more than sixty (60) monthly principal and interest installment
payments starting with the first day of the month following the month in which
the loan is made, with interest at the rate of three percent (3%) per year on
the unpaid balance of the loan or loans outstanding.
B. In the event Employee xxxxxx employment with Employer for reasons
other than permanent disability, death, or retirement while a loan or loans are
outstanding, the unpaid principal amount then outstanding shall be due and
payable within thirty (30) days after the date of termination. In the event
severance of employment is due to permanent disability, death, or retirement,
Employee, or the legal representative of Employee, shall repay any outstanding
loan in accordance with the terms of the promissory note.
C. Should there be a default in the payment of any installment of
principal and interest when due, then the entire sum of principal and interest,
at the option of the Employer, shall immediately become due and payable without
demand or notice. In case this note shall not be paid when due according to its
terms, Employee shall pay all costs of collection and reasonable attorney's fees
whether or not suit is filed on the note.
12. PERMANENT DISABILITY.
A. In the event Employee becomes permanently disabled (hereinafter
defined) during employment with Employer, Employer may terminate this agreement
by giving thirty (30) days notice to Employee of its intent to terminate, and,
unless Employee resumes performance of the duties set forth in Paragraph 2
within five (5) days of the date of notice and continues performance for the
remainder of the notice period, this agreement will terminate at the end of the
thirty (30) day period. "Permanently disabled" for the purpose of this agreement
will mean the inability, due to physical or mental ill health, or any reason
beyond the control of Employee to perform Employee's duties for sixty (60)
consecutive days or for an aggregate of ninety (90) days during any one
employment year irrespective of whether such days are consecutive.
B. Upon termination of employment under the provisions of subparagraph
(12A) above, Employee will be entitled to any deferred compensation to which the
Employee may be entitled under the provisions of Paragraph 5 herein paid to him
upon giving notice to the Employer. For the purposes of Paragraph 5, termination
under subparagraph (12A) of this agreement shall be considered "retirement";
Employee will be excused from performing advisory services as required under
Paragraph 5(B)(ii.) but shall nevertheless be entitled to Advisory Payments
except the extent limited by death of Employee as set forth in Paragraph 5(C)
herein.
C. Employer shall maintain, at its expense, a disability Policy
covering Employee for a dollar amount specified by the Board of Directors of
Employer. This amount may not exceed one hundred percent (100%) of the base
salary. Benefits of this policy shall begin on the date the Employee's
Sick/Personal Leave days are exhausted and shall continue until the Employee's
deferred compensation as outlined in paragraph 5 of this agreement goes into
effect.
13. DEATH. In the event that Employee dies during the term of this
agreement, this agreement shall immediately terminate except as provided in
paragraph 5C. herein.
14. TERMINATION.
A. This agreement may be terminated by Employer by giving ten (10)
days notice to Employee if Employee willfully breaches or habitually neglects
the duties to be performed under Paragraph 2, habitually engages in the use of
illegal substances or the excessive use of alcohol, or engages in any conduct
which is illegal or dishonest resulting in damage to the reputation of Employer.
B. This agreement may be terminated by Employee, without cause, by
giving ninety (90) days notice to Employer.
C. In the event employment is terminated pursuant to subparagraphs (A)
or (B), Employee will be entitled to only base salary compensation earned prior
to the date of termination as provided for in Paragraph 3 of this agreement
computed pro rata up to and including the date of termination, plus one twelfth
(1/12) of one years base salary. Employee shall not receive the incentive salary
payments or the deferred compensation payments provided for in Paragraphs 3(B)
and 4, respectively.
D. Should Employer wish to terminate the Employee for any reason, other
than those listed in subparagraph 14A of this agreement, Employee shall receive
the compensation due for the remainder of the Term of Employment (defined in
paragraph three (3) of this agreement), said compensation shall be in a lump sum
equal to the total amount of the base salary as defined in subparagraph four "A"
(4A) of this agreement, in this case "cost of living" increases would not be
applicable. Employee would still receive the "Bonus" as
defined in paragraph four "B" (4B) of this agreement. Upon termination as
defined in this paragraph, Employee would, regardless of age, tenure or Employer
approval, immediately become eligible to also receive Deferred Compensation as
defined in sub-paragraphs five "A" through five "D" (5A-5D) of this agreement.
E. In the event Employer is acquired, is a non surviving party in a
merger, or transfers substantially all of its assets, this agreement shall not
be terminated and Employer agrees to take all actions necessary to ensure that
the transferee or surviving company is bound by the provisions of this
agreement.
15. NOTICES. Any notice provided for in this Agreement shall be given
in writing. Notices shall be effective from the date of service, if served
personally on the party to whom notice is to be given, or on the second day
after mailing, if mailed by first class mail, postage prepaid. Notices shall be
properly addressed to the parties at their respective addresses: Employer: 000
X. Xxxxx Xxx. Xxxx Xxxx Xxxxx, XX 00000, Employee: 000 Xxx Xxxxxxx, Xxxx Xxxxx,
Xxxxxxx 00000, or to such other address as either party may later specify by
notice to the other.
16. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
supersedes all prior agreements and understandings., oral or written, with
respect to the subject matter hereof. This Agreement may be changed only by an
agreement in writing signed by the party against whom any waiver, change,
amendment or modification is sought.
17. WAIVER. The waiver by the Employer of a breach of any of the
provisions of this Agreement by the Employee shall not be construed as a waiver
of any subsequent breach by the Employee.
18. GOVERNING LAW; VENUE. This Agreement shall be construed and
enforced in accordance with the laws of the State of Florida. Palm Beach County,
Florida, shall be the proper venue for any litigation arising out of this
Agreement.
19. PARAGRAPH HEADINGS. Paragraph headings are for convenience only and
are not intended to expand or restrict the scope or substance of the provisions
of this Agreement.
20. ASSIGNABILITY. The rights and obligations of the Employer under
this Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of the Employer. This Agreement is a personal employment
agreement and the rights, obligations and interests of the Employee hereunder
may not be sold, assigned, transferred, pledged or hypothecated.
21. SEVERABILITY. If any provision of this Agreement is held by a court
of competent jurisdiction to be invalid or unenforceable, the remainder of the
Agreement shall remain in full force and effect and shall in no way be impaired.
22. ARBITRATION. Any controversy or claim arising out of or relating to
this contract, or breach thereof, shall be settled by arbitration in accordance
with the Rules of the American Arbitration Association and judgment upon the
award rendered by the arbitrators may be entered in any court having
jurisdiction thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
18th day of January, 1996.
FOR EMPLOYEE
/S/ XXXXXX XXXXXXX
-----------------------------------
Xxxxxx Xxxxxxx
FOR THE COMPANY
TRIDENT ENVIRONMENTAL INDUSTRIES, INC., a Florida corporation
/S/ XXXXXX X. XXXXXXXXX
-----------------------------------------
Xxxxxx X. Xxxxxxxxx
Exec. Vice President
/S/ XXXXXX X. XXXXX, XX.
-----------------------------
Xxxxxx X. Xxxxx, Xx.
Secretary/Director
