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EXHIBIT 10.06
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into this
First day of September, 1999, by and between FIBR-PLAST CORP., an Oklahoma
corporation (the "Company") and XXXXXX X. XXXXXX ("Executive").
W I T N E S S E T H:
WHEREAS, Executive is currently employed by the Company as its
President, Treasurer and Chief Executive Officer; and
WHEREAS, the Company and Executive desire to continue the employment
of the Executive by the Company on the terms and conditions hereinbelow set
forth;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of such is hereby acknowledged by the Executive and the Company,
the Company and Executive hereby agree as follows:
1. Employment.
(a) Agreement to Employ. Upon the terms and subject to
the conditions of this Agreement, the Company shall employ Executive, and
Executive hereby agrees to accept employment by the Company.
(b) Term of Employment. Unless terminated as provided in
Paragraph 5.(a) hereof, the Company shall employ Executive pursuant to the
terms of this Agreement for the period commencing on the date hereof (the
"Commencement Date") and ending five years thereafter. The period during which
Executive remains employed by the Company pursuant to this Agreement (as same
may be amended or modified from time to time in accordance herewith) shall be
referred to as the "Employment Period."
2. Position and Duties. During the Employment Period, the
Executive shall serve as President, Treasurer and Chief Executive Officer of
the Company and shall have the duties, responsibilities and obligations
customarily assigned to individuals serving as President, Treasurer and Chief
Executive Officer of comparable companies and such other duties,
responsibilities and obligations not inconsistent with the position of
Executive with the Company as may be specified by the Board of Directors of the
Company (the "Board") from time to time. The Executive shall devote at least
90% of his time to the services required of the Executive hereunder, except for
vacation time and authorized periods of absence due to sickness, personal
injury or other disability, and the Executive shall use the Executive's best
efforts, judgment, skill and energy to perform such services in a manner
consonant with the duties of the Executive's position and to improve and
advance the business and interests of Company. Executive represents that
Executive's employment hereunder and compliance by Executive with the terms and
conditions of this Agreement shall not conflict with or result in the breach of
any agreement to which Executive is a party or by which Executive may be
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bound. Notwithstanding anything in this Employment Agreement to the contrary,
the term "Company" as used in this Paragraph 2 shall refer to FIBR-PLAST CORP.,
an Oklahoma corporation, and any subsidiaries thereof which now exist or may
exist during the Employment Period.
3. Compensation.
(a) Base Salary. During the Employment Period, the
Company shall pay the Executive a base salary at the annual rate of $52,000.
Subsequent to one year from the date hereof, such salary may be increased only
by the unanimous consent of a Compensation Committee of the Company's Board of
Directors (the "Compensation Committee"), provided that not less than two
thirds of the members of such Committee consist of persons who are neither (i)
otherwise affiliated with the Company or (ii) related to the Executive by
blood, marriage or adoption. Executive's annual base salary payable hereunder
is referred to herein as "Base Salary." The Company shall pay Executive's Base
Salary in equal weekly installments or in such other installments upon which
the Executive and the Company may agree.
(b) Annual Incentive Compensation. Upon the unanimous
consent of the Compensation Committee which shall be composed of members as
described in Paragraph 3.(a) above, the Executive shall be entitled to receive
an annual bonus in a maximum amount of 25% of the Company's net income for each
year during the Employment Period. For purposes hereof, net income shall be
computed in accordance with generally accepted accounting principals,
consistently applied.
4. Benefits and Expenses.
(a) Benefits. During the Employment Period, the
Executive shall be eligible to participate in each pension, deferred
compensation or welfare benefit plan sponsored or maintained from time to time
by the Company, if any, including without limitation each profit sharing,
retirement or savings plan or program, and each group life, hospitalization,
medical, dental, health, accident or disability insurance or similar plan or
program of the Company, in each case, whether now existing or established
hereafter, to the extent that the Executive is eligible to participate in any
such plan or program in accordance with the Company's policies applicable to
employees and the generally applicable provisions of such plans and programs.
Notwithstanding the foregoing, the Executive and his family shall also be
entitled to continue to participate in the insurance policies that are now
being paid for by the Company and the Executive shall be eligible to
participate in comparable policies during the Employment Period.
(b) Vacations. During the Employment Period, Executive
shall be entitled to up to four weeks of paid vacation annually and shall also
be entitled to receive such perquisites as may be provided by the Company in
accordance with the then current policies and practices of the Company.
(c) Business Expenses. During the Employment Period, the
Company shall pay or reimburse the Executive for all authorized expenses
incurred or paid by the Executive in the
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performance of the Executive duties hereunder, including the use of a cellular
telephone, upon presentation of expense statements or vouchers and such other
information as the Company may require and in accordance with the generally
applicable policies and procedures of the Company.
(d) Automobile. The Company shall provide the Executive
with the use of, and insurance on, a leased automobile.
5. Termination of Employment.
(a) Early Termination of the Employment Agreement.
Notwithstanding the provisions of Paragraph 1.(b) hereof, the Employment Period
shall end upon the earliest to occur of:
(1) the Executive's death; or
(2) Termination Due to Disability; or
(3) Termination for Cause
(b) Definitions. For the purposes of Paragraph 5 of this
Agreement, capitalized terms shall have the following meanings:
(1) "Termination for Cause" means a termination
of the Executive's employment by Company due to:
(A) the Executive's conviction of a
felony or the entering by the Executive of a plea of nolo contendere
to a felony;
(B) the Executive's gross negligence,
dishonesty, malfeasance or misconduct in connection with the
Executive's employment hereunder;
(C) Refusal by the Executive, in
breach of this Agreement, to perform the duties, responsibilities or
obligations assigned to the Executive pursuant to the terms hereof;
(D) Any intentional violation by the
Executive of any federal or state law, rule or regulation applicable
to the Company under circumstances in which a determination is made by
the Company, in the exercise of the reasonable judgement of the
Company, that such violation will have a material adverse affect upon
the business or reputation of the Company; or
(E) Any breach by the Executive of any
covenant contained in Paragraph 6 of this Agreement.
(2) "Termination Due to Disability" means a
termination of the Executive's employment by Company because the
Executive has been incapable of fulfilling the positions,
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duties, responsibilities and obligations set forth in this Agreement
because of physical, mental or emotional incapacity resulting from
injury, sickness or disease for a period of: (A) at least three
consecutive months; or (B) more than 120 days in any twelve month
period. Any question as to the existence, extent or potentiality of
the Executive's disability upon which the Executive and Company cannot
agree shall be determined by a qualified, independent physician
selected by the Company and acceptable to both the Company and the
Executive or, in the event of the Executive's mental or emotional
incapacity, the Executive's legal representative. The determination of
any such physician shall be final and conclusive for all purposes of
this Agreement.
6. Noncompetition and Confidentiality.
(a) Noncompetition. During the Employment Period and
during the twelve month period following the Employment Period (the
"Restriction Period"), the Executive shall not become associated with any
entity, whether as a principal, partner, employee, consultant or shareholder
(other than as a holder of not in excess of five percent of the outstanding
voting shares of any publicly traded company), that is in direct competition
with Company in any area of the United States.
(b) Confidentiality. Without the prior written consent
of the Company, other than as shall be necessary or advisable in the ordinary
course of the Company's business, except to the extent required by an order of
a court having competent jurisdiction or under subpoena from an appropriate
governmental agency, the Executive shall not disclose any trade secrets,
customer lists, drawings, designs, information regarding product development,
marketing plans, sales plans, manufacturing plans, management organization
information (including data and other information relating to members of
management), operating policies or manuals, business plans, financial records,
packaging design or other financial, commercial, business or technical
information relating to the Company or information designated as confidential
or proprietary that the Company may receive belonging to suppliers, customers
or others who do business with the Company (collectively "Confidential
Information") to any third person, unless such Confidential Information has
been previously disclosed to the public by the Company or is in the public
domain (other than by reason of the Executive's breach of this Paragraph 6.(b).
The provisions contained in this paragraph shall not be construed to prohibit
the use by the Executive of the Executive's knowledge, experience and other
business talents developed over the years as an executive involved in business
similar to the business of the Company.
(c) Company Property. Promptly following the Executive's
termination of employment, the Executive shall return to the Company all
property of the Company and all copies thereof in the Executive's possession or
under the Executive's control, including without limitation all Confidential
Information, in whatever media.
(d) Non-Solicitation of the Executives. During the
Employment Period and the Restriction Period, the Executive shall not, directly
or indirectly, induce any employee of the Company to terminate employment with
Company, and shall not, directly or indirectly, either individually or as
owner, agent, employee, consultant or otherwise, employ or offer employment to
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any person who is or was employed by the Company, unless such person shall have
ceased to be employed by Company for a period of at least one year.
(e) Injunctive Relief with Respect to Covenants. The
Executive acknowledges and agrees that the covenants and obligations of the
Executive with respect to noncompetition, nonsolicitation, confidentiality and
the Company's property relate to special, unique and extraordinary matters and
that a violation of any of the terms of such covenants or obligations will
cause the Company irreparable injury for which adequate remedies may not be
available at law. Therefore, the Executive agrees that the Company shall be
entitled to an injunction, restraining order or other equitable relief (without
the requirement to post bond therefor) restraining the Executive from
committing any violation of the covenants or obligations contained in this
Paragraph 6. These injunctive remedies are cumulative and are in addition to
any other rights and remedies Company may have at law or in equity. In
connection with the foregoing provisions of this Paragraph 6, the Executive
represents that the Executive's economic means and circumstances are such that
such provisions will not prevent the Executive from providing for the Executive
and the Executive's family on a basis satisfactory to the Executive.
7. Miscellaneous.
(a) Survival. The provisions of Paragraphs 5, 6 and
7.(l)of this Agreement shall survive the termination hereof, whether such
termination shall be by expiration of the Employment Period on the last day
thereof specified in Paragraph 1.(b) or by early termination of the Employment
Period pursuant to Paragraph 5.
(b) Binding Effect. This Agreement shall be binding upon
and shall inure to the benefit of the Company and any person or entity that
succeeds to the interest of the Company (regardless of whether such succession
occurs by operation of law or otherwise). This Agreement shall also inure to
the benefit of the Executive's heirs, executors, administrators and legal
representatives.
(c) Assignment. Neither this Agreement nor any of the
rights or obligations hereunder shall be assigned or delegated by either party
hereto without the prior written consent of the other party.
(d) Entire Agreement. This Agreement supersedes any and
all prior agreements between the parties hereto and constitutes the entire
agreement between the parties hereto with respect to the matters referred to
herein. No other agreement relating to the terms of the Executive's employment
by the Company, oral or otherwise, shall be binding between the parties unless
it is in writing and signed by the party against whom enforcement is sought.
There are no promises, representations, inducements or statements between the
parties relating to the terms of the Executive's employment by the Company,
other than those that are expressly contained herein.
(e) Severability; Reformation. In the event that one or
more of the provisions of this Agreement shall become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not be affected thereby. In the
event
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that any of the provisions of Paragraphs 6.(a) through 7.(d) are not
enforceable in accordance with the terms of those paragraphs, respectively, the
Executive and the Company agree that such paragraph(s) shall be reformed to
make such paragraph(s) enforceable in a manner that provides the Company with
the maximum rights permitted at law.
(f) Waiver. Waiver by any party hereto of any breach or
default by the other party or any of the terms of this Agreement shall not
operate as a waiver of any other breach or default, whether similar to or
different from the breach or default waived. No waiver of any provision of this
Agreement shall be implied from any course of dealing between the parties
hereto or from any failure by either party hereto to assert such party's rights
hereunder on any occasion or series of occasions.
(g) Notices. Any notice required or desired to be
delivered under this Agreement shall be made in writing; shall be delivered by
courier service, by registered mail, return receipt requested, or by facsimile;
shall be effective upon such delivery by the party to which such notice shall
be directed; and shall be addressed as follows (or to such other address as the
party entitled to notice shall hereafter designate in accordance with the terms
hereof):
If to Company: If to the Executive:
FIBR-PLAST CORP. XXXXXX X. XXXXXX
0000 X. XXXXXXX, XXXXX 000 3225 X. XXXXXXX, SUITE 100
TULSA, OK. 74135 XXXXX, XX. 00000
(h) Amendments. This Agreement may not be altered,
modified or amended, except by a written instrument signed by each of the
parties hereto.
(i) Headings. Headings to paragraphs in this Agreement
are for the convenience of the parties only and are not intended to be part of
or to affect the meaning or interpretation hereof.
(j) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(k) Withholding. Any payments provided for herein shall
be reduced by any amounts required to be withheld by the Company from time to
time under applicable federal, state or local income or employment tax laws or
similar statutes or other provisions of law then in effect.
(l) Governing Law. This Agreement shall be governed by
the laws of the State of Oklahoma without reference to principles or conflicts
or choice of law under which the law of any other jurisdiction would apply.
(m) Venue. Any suit, action or proceeding with respect
to this Agreement shall be brought in the courts of Tulsa County in the State
of Oklahoma or in the U.S. District Court for the Northern District of
Oklahoma.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer and the Executive has hereunto set the
Executive's hand as of the day and year first above written.
FIBR-PLAST CORP.
By: /s/Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx
Executive Vice-President
/s/Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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