VERTEX ENERGY, INC. EXECUTIVE EMPLOYMENT AGREEMENT
EXHIBIT
10.5
VERTEX
ENERGY, INC.
THIS
EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) is
entered into this __ day of December 2008, to be effective as of the Effective
Date as defined below between Vertex Energy, Inc., a Nevada corporation (the
“Company”), and
Xxxxxxxx X. Xxxxxx (“Executive”) (each of
Company and Executive is referred to herein as a “Party,” and
collectively referred to herein as the “Parties”).
W
I T N E S S E T H:
WHEREAS, the Company desires
to obtain the services of Executive, and Executive desires to be employed by the
Company upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in
consideration of the premises, the agreements herein contained and other good
and valuable consideration, receipt of which is hereby acknowledged, the parties
hereto agree as of the Effective Date as follows:
ARTICLE
I.
EMPLOYMENT;
TERM; DUTIES
1.1. Employment. Pursuant
to the terms and conditions hereinafter set forth, the Company hereby employs
Executive, and Executive hereby accepts such employment, as the Chief Executive
Officer (“CEO”)
of the Company for a period of five (5) years beginning on the Effective
Date.
1.2. Duties and
Responsibilities. Executive, as CEO, shall perform such
administrative, managerial and executive duties for the Company (i) as are
prescribed by applicable job specifications for the chief executive officer of a
public company the size and nature of the Company, (ii) as may be prescribed by
the Bylaws of the Company, (iii) as are customarily vested in and
incidental to such position, and (iv) as may be assigned to him from time
to time by the Board of Directors of the Company (the “Board”).
1.3. Non-Competition. Executive
agrees to devote substantially all of Executive’s business time, energy and
efforts to the business of the Company (except as specifically provided for in
Section 1.4 below), and will use Executive’s best efforts and abilities
faithfully and diligently to promote the business interests of the
Company. For so long as Executive is employed hereunder, and for a
period of six months thereafter (the “Non-Compete Period”),
Executive shall not, directly or indirectly, either as an employee, employer,
consultant, agent, investor, principal, partner, stockholder (except as the
holder of less than 1% of the issued and outstanding stock of a publicly held
corporation), corporate officer or director, or in any other individual or
representative capacity, engage or participate in any business that is in
competition in any manner whatsoever with the business of the Company, as such
business of the Company is now or hereafter conducted.
1.4. Other
Activities. Subject to the foregoing prohibition and provided
such services or investments do not violate any applicable law, regulation or
order, or interfere in any way with the faithful and diligent performance by
Executive of the services to the Company otherwise required or contemplated by
this Agreement, the Company expressly acknowledges that Executive
may:
1.4.1 make
and manage personal business investments of Executive’s choice without
consulting the Board;
1.4.2 serve
in any capacity with any non-profit civic, educational or charitable
organization; and
1.4.3 spend
up to a total of twenty (20) hours per month in fulfilling his duties as
officer, director and/or manager of any of the private companies with whom
Executive is currently affiliated, namely Vertex Energy, LP, VTX, Inc., Cross
Road Carriers, Vertex Recovery, H&H Oil, Arrow, Cedar Marine Terminal,
Vertex Residual Management, B&S Xxxxxx, FLP, Vertex Green, LP and Vertex
Processing, pursuant to Exhibit
A.
1.4.4 a
“Related Party
Transaction Committee,” composed of at least two (2) Independent
Directors (as defined below) of the Company shall be appointed. Such
Related Party Transaction Committee shall be available to Executive to review
any potential conflicts of interest between Executive, the Company and any other
company or individual which may be affiliated with Executive.
1.5. Board of
Directors. Prior to the effectiveness of this Agreement, the
Board has appointed Executive as a member of the Board, to serve until the next
election of directors by the Company’s shareholders. Thereafter, provided that
Executive is still employed hereunder, the Board shall nominate Executive to be
elected to serve on the Board at each meeting of the Company’s shareholders held
during the term of this Agreement to elect directors, consistent with the
provisions of the Bylaws and Articles of Incorporation of the Company, as
amended and in effect from time to time.
1.6. Covenants of
Executive.
1.6.1 Best
Efforts. Executive shall devote his best efforts to the
business and affairs of the Company. Executive shall perform his
duties, responsibilities and functions to the Company hereunder to the best of
his abilities in a diligent, trustworthy, professional and efficient manner and
shall comply, in all material respects, with all rules and regulations of the
Company (and special instructions of the Board, if any) and all other rules,
regulations, guides, handbooks, procedures and policies applicable to the
Company and its business in connection with his duties hereunder, including all
United States federal and state securities laws applicable to the
Company.
1.6.2 Records. Executive
shall use his best efforts and skills to truthfully, accurately, and promptly
prepare, maintain, and preserve all records and reports that the Company may,
from time to time, request or require, fully account for all money, records,
equipment, materials, or other property belonging to the Company of which he may
have custody, and promptly pay and deliver the same whenever he may be directed
to do so by the Board.
1.6.3 Compliance. Executive
shall use his best efforts to maintain the Company’s compliance with all rules
and regulations of the Securities and Exchange Commission (“SEC”), and reporting
requirements for publicly traded companies, including, without limitation,
overseeing and filing with the SEC all periodic reports the Company is required
to file under the Exchange Act of 1934 (as amended, the “Exchange
Act”). Executive shall at all times comply, and cause the
Company to comply, with the then-current good corporate governance standards and
practices as prescribed by the SEC, any exchange on which the Company’s capital
stock or other securities may be traded and any other applicable governmental
entity, agency or organization. Without limiting the generality of
the foregoing, Executive shall submit for pre-approval to the Audit Committee of
the Board any proposed related-party transactions.
1.7. Effective
Date. The “Effective Date” of
this Agreement shall be the closing date of the Amended and Restated
Agreement and Plan of Merger by and Between World Waste Technologies, Inc.,
Vertex Energy, L.P., Vertex Energy, Inc., Xxxxxxxx X. Xxxxxx and Vertex Merger
Sub, LLC, dated on or around May 19, 2008, as amended from time to
time.
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ARTICLE
II.
COMPENSATION
AND OTHER BENEFITS
2.1. Base
Salary. So long as this Agreement remains in effect, for all
services rendered by Executive hereunder and all covenants and conditions
undertaken by the Parties pursuant to this Agreement, the Company shall pay, and
Executive shall accept, as compensation, an annual base salary (“Base Salary”) of
$190,000. The Base Salary shall be payable in regular installments in
accordance with the normal payroll practices of the Company, in effect from time
to time, but in any event no less frequently than on a monthly basis. For so
long as Executive is employed hereunder, beginning on the first anniversary of
the Effective Date, and on each anniversary thereafter, the Base Salary shall be
increased as determined by the Compensation Committee of the Board (the “Compensation
Committee”), in its sole and absolute discretion.
2.2. Bonus
Compensation. For each year this Agreement is in effect,
Executive will be eligible to earn a bonus in the sole discretion of the
Compensation Committee.
2.3. Business
Expenses. So long as this Agreement is in effect, the Company
shall reimburse Executive for all reasonable, out-of-pocket business expenses
incurred in the performance of his duties hereunder consistent with the
Company’s policies and procedures, in effect from time to time, with respect to
travel, entertainment and other business expenses customarily reimbursed to
senior executives of the Company in connection with the performance of their
duties on behalf of the Company.
2.4. Vacation. Executive
will be entitled to 20 days of paid time-off (“PTO”) per year. PTO
days shall accrue beginning on the 1st of January for each year during the term
of this Agreement. Unused PTO days shall expire on December 31 of each year and
shall not roll over into the next year. Other than the use of PTO days for
illness or personal emergencies, PTO days must be pre-approved by the
Company.
2.5. Other
Benefits. Executive shall be entitled to participate in the
Company’s employee stock option plan, life, health, accident, disability
insurance plans, pension plans and retirement plans, in effect from time to time
(including, without limitation, any incentive program or discretionary bonus
program of the Company which may be implemented in the future by the Board), to
the extent and on such terms and conditions as the Company customarily makes
such plans available to its senior executives.
2.6. Withholding. The
Company may deduct from any compensation payable to Executive (including
payments made pursuant to this Section 2 or in connection with the
termination of employment pursuant to Article III of this Agreement) amounts
sufficient to cover Executive’s share of applicable federal, state and/or local
income tax withholding, social security payments, state disability and other
insurance premiums and payments.
ARTICLE
III.
TERMINATION
OF EMPLOYMENT
3.1. Termination of
Employment. Executive’s employment pursuant to this Agreement
shall terminate on the earliest to occur of the following:
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3.1.1 upon
the death of Executive;
3.1.2 upon
the delivery to Executive of written notice of termination by the Company if
Executive shall suffer a physical or mental disability which renders Executive,
in the reasonable judgment of the Compensation Committee, unable to perform his
duties and obligations under this Agreement for either 90 consecutive days or
180 days in any 12-month period;
3.1.3 on
the five-year anniversary of the date hereof;
3.1.4 upon
delivery to the Company of written notice of termination by Executive for any
reason other than for Good Reason;
3.1.5 upon
delivery to Executive of written notice of termination by the Company for
Cause;
3.1.6 upon
delivery of written notice of termination from Executive to the Company for Good
Reason, provided, however, prior to any
such termination by Executive pursuant to this Section 3.1.6, Executive shall
have advised the Company in writing within fifteen (15) days of the occurrence
of any circumstances that would constitute Good Reason, and the Company has not
cured such circumstances within 15 days following receipt of Executive’s written
notice, with the exception of only five (5) days written notice in the event the
Company reduces Executive’s salary without Executive’s consent or fails to pay
Executive any compensation due him; or
3.1.7 upon
delivery to Executive of written notice of termination by the Company without
Cause.
3.2. Certain Definitions.
For purposes of this Agreement, the following terms shall have the following
meanings:
3.2.1 “Cause” shall mean, in
the context of a basis for termination by the Company of Executive’s employment
with the Company, that:
(i)
Executive materially breaches any obligation, duty, covenant or agreement under
this Agreement, which breach is not cured or corrected within thirty
(30) days of written notice thereof from the Company (except for breaches
of Article IV of this Agreement, which cannot be cured and for which the Company
need not give any opportunity to cure); or
(ii)
Executive commits any act of misappropriation of funds or embezzlement;
or
(iii)
Executive commits any act of fraud; or
(iv)
Executive is indicted of, or pleads guilty or nolo contendere with respect
to, theft, fraud, a crime involving moral turpitude, or a felony under federal
or applicable state law.
3.2.2
“Good Reason”
shall mean, in the context of a basis for termination by Executive of his
employment with the Company (a) without Executive’s consent, his position or
duties are modified by the Company to such an extent that his duties are no
longer consistent with the position of CEO of the Company, (b) there has been a
material breach by the Company of a material term of this Agreement which
continues uncured following thirty (30) days after such breach, or (c)
Executive’s compensation as set forth hereunder is reduced without Executive’s
consent, or the Company fails to pay to Executive any compensation due to him
hereunder upon five (5) days written notice from Executive informing the Company
of such failure.
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3.3. “Termination Date”
shall mean the date on which Executive’s employment with the Company hereunder
is terminated
3.4. Effect of
Termination. In the event that Executive’s employment
hereunder is terminated in accordance with the provisions of this Agreement,
Executive shall be entitled to the following:
3.4.1 If
Executive’s employment is terminated pursuant to Sections 3.1.1 (death), 3.1.2
(disability), 3.1.3 (five-year anniversary) or 3.1.5 (by the Company for Cause),
Executive shall be entitled to salary accrued through the Termination Date and
no other benefits other than as required under the terms of employee benefit
plans in which Executive was participating as of Termination Date.
3.4.2 If
Executive’s employment is terminated pursuant to Section 3.1.4 (without Cause by
the Executive), by Executive pursuant to Section 3.1.6 (Good Reason), or
pursuant to Section 3.1.7 (without Cause by the Company), Executive shall be
entitled to continue to receive the salary at the rate in effect upon the
Termination Date of employment for six (6) months following the Termination
Date, payable in accordance with the Company’s normal payroll practices and
policies, as if Executive’s employment had not terminated. Executive
shall be entitled to no other post-employment benefits except for benefits
payable under applicable benefit plans in which Executive is entitled to
participate pursuant to Section 2.5 hereof through the Termination Date, subject
to and in accordance with the terms of such plans.
3.4.3 As
a condition to Executive’s right to receive any benefits pursuant to Section
3.4.2 of this Agreement, (A) Executive must execute and deliver to the Company a
written release in form and substance satisfactory to the Company, of any and
all claims against the Company and all directors and officers of the Company
with respect to all matters arising out of Executive’s employment hereunder, or
the termination thereof (other than claims for entitlements under the terms of
this Agreement or plans or programs of the Company in which Executive has
accrued a benefit); and (B) Executive must not breach any of his covenants and
agreements under Section 1.3 and Article IV of this Agreement, which continue
following the Termination Date.
3.4.4 In
the event of termination of Executive’s employment pursuant to Section 3.1.5 (by
the Company for Cause), and subject to applicable law and regulations, the
Company shall be entitled to offset against any payments due Executive the loss
and damage, if any, which shall have been suffered by the Company as a result of
the acts or omissions of Executive giving rise to termination. The
foregoing shall not be construed to limit any cause of action, claim or other
rights, which the Company may have against Executive in connection with such
acts or omissions.
3.4.5 Upon
termination of Executive’s employment hereunder, or on demand by the Company
during the term of this Agreement, Executive will immediately deliver to the
Company, and will not keep in his possession, recreate or deliver to anyone
else, any and all Company property, as well as all devices and equipment
belonging to the Company (including computers, handheld electronic devices,
telephone equipment, and other electronic devices), Company credit cards,
records, data, notes, notebooks, reports, files, proposals, lists,
correspondence, specifications, drawings blueprints, sketches, materials,
photographs, charts, all documents and property, and reproductions of any of the
aforementioned items that were developed by Executive pursuant to his employment
with the Company, obtained by Executive in connection with his employment with
the Company, or otherwise belonging to the Company, its successors or assigns,
including, without limitation, those records maintained pursuant to this
Agreement.
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3.4.6 Executive
also agrees to keep the Company advised of his home and business address for a
period of three (3) years after termination of Executive’s employment hereunder,
so that the Company can contact Executive regarding his continuing obligations
provided by this Agreement. In the event that Executive’s employment
hereunder is terminated, Executive agrees to grant consent to notification by
the Company to Executive’s new employer about his obligations under this
Agreement.
3.5. Consulting. During
the period that Executive is receiving payments pursuant to
subsection 3.4.2 above, Executive shall be available, subject to his other
reasonable commitments or obligations made or incurred in mitigation of the
termination of his employment, by telephone, email or fax, as a consultant to
the Company, without further compensation, to consult with its officers and
directors regarding projects and/or tasks as defined by the Board.
ARTICLE
IV.
INVENTIONS;
CONFIDENTIAL/TRADE SECRET INFORMATION AND RESTRICTIVE COVENANTS
4.1. Inventions. All
processes, technologies and inventions relating to the business of the Company
(collectively, “Inventions”),
including new contributions, improvements, ideas, discoveries, trademarks and
trade names, conceived, developed, invented, made or found by Executive, alone
or with others, during his employment by the Company, whether or not patentable
and whether or not conceived, developed, invented, made or found on the
Company’s time or with the use of the Company’s facilities or materials, shall
be the property of the Company and shall be promptly and fully disclosed by
Executive to the Company. Executive shall perform all necessary acts
(including, without limitation, executing and delivering any confirmatory
assignments, documents or instruments requested by the Company) to assign or
otherwise to vest title to any such Inventions in the Company and to enable the
Company, at its sole expense, to secure and maintain domestic and/or foreign
patents or any other rights for such Inventions.
4.2. Confidential/Trade Secret
Information/Non-Disclosure.
4.2.1 Confidential/Trade Secret
Information Defined. During the course of Executive’s
employment, Executive will have access to various Confidential/Trade Secret
Information of the Company and information developed for the
Company. For purposes of this Agreement, the term “Confidential/Trade Secret
Information” is information that is not generally known to the public
and, as a result, is of economic benefit to the Company in the conduct of its
business, and the business of the Company’s subsidiaries. Executive
and the Company agree that the term “Confidential/Trade Secret
Information” includes but is not limited to all information developed or
obtained by the Company, including its affiliates, and predecessors, and
comprising the following items, whether or not such items have been reduced to
tangible form (e.g., physical writing, computer hard drive, disk, tape,
etc.): all methods, techniques, processes, ideas, research and
development, product designs, engineering designs, plans, models, production
plans, business plans, add-on features, trade names, service marks, slogans,
forms, pricing structures, menus, business forms, marketing programs and plans,
layouts and designs, financial structures, operational methods and tactics, cost
information, the identity of and/or contractual arrangements with suppliers
and/or vendors, accounting procedures, and any document, record or other
information of the Company relating to the above. Confidential/Trade
Secret Information includes not only information directly belonging to the
Company which existed before the date of this Agreement, but also information
developed by Executive for the Company, including its subsidiaries, affiliates
and predecessors, during the term of Executive’s employment with the
Company. Confidential/Trade Secret Information does not include any
information which (a) was in the lawful and unrestricted possession of Executive
prior to its disclosure to Executive by the Company, its subsidiaries,
affiliates or predecessors, (b) is or becomes generally available to the public
by lawful acts other than those of Executive after receiving it, or (c) has been
received lawfully and in good faith by Executive from a third party who is not
and has never been an executive of the Company, its subsidiaries, affiliates or
predecessors, and who did not derive it from the Company, its subsidiaries,
affiliates or predecessors.
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4.2.2 Restriction on Use of
Confidential/Trade Secret Information. Executive agrees that
his/her use of Confidential/Trade Secret Information is subject to the following
restrictions for an indefinite period of time so long as the Confidential/Trade
Secret Information has not become generally known to the public:
(i) Non-Disclosure. Executive
agrees that he will not publish or disclose, or allow to be published or
disclosed, Confidential/Trade Secret Information to any person without the prior
written authorization of the Company unless pursuant to or in connection with
Executive’s job duties to the Company under this Agreement; and
(ii)
Non-Removal/Surrender. Executive
agrees that he will not remove any Confidential/Trade Secret Information from
the offices of the Company or the premises of any facility in which the Company
is performing services, except pursuant to his duties under this
Agreement. Executive further agrees that he shall surrender to the
Company all documents and materials in his possession or control which contain
Confidential/Trade Secret Information and which are the property of the Company
upon the termination of his employment with the Company, and that he shall not
thereafter retain any copies of any such materials.
4.2.3 Prohibition Against Unfair
Competition/ Non-Solicitation of Customers. Executive agrees
that at no time after his employment with the Company will he engage in
competition with the Company while making any use of the Confidential/Trade
Secret Information, or otherwise exploit or make use of the Confidential/Trade
Secret Information. Executive agrees that during the six-month period following
the Termination Date, he will not directly or indirectly accept or solicit, in
any capacity, the business of any customer of the Company with whom Executive
worked or otherwise had access to the Confidential/Trade Secret Information
pertaining to the Company’s business with such customer during the last year of
Executive’s employment with the Company, or solicit, directly or indirectly, or
encourage any of the Company’s customers or suppliers to terminate their
business relationship with the Company, or otherwise interfere with such
business relationships.
4.3. Non-Solicitation of
Employees. Employee agrees that during the six-month period
following the Termination Date, he shall not, directly or indirectly, solicit or
otherwise encourage any employees of the Company to leave the employ of the
Company, or solicit, directly or indirectly, any of the Company’s employees for
employment.
4.4. Non-Solicitation During
Employment. During his employment with the Company, Executive
shall not: (a) interfere with the Company’s business relationship with its
customers or suppliers, (b) solicit, directly or indirectly, or otherwise
encourage any of the Company’s customers or suppliers to terminate their
business relationship with the Company, or (c) solicit, directly or indirectly,
or otherwise encourage any employees of the Company to leave the employ of the
Company, or solicit any of the Company’s employees for employment.
4.5. Conflict of
Interest. During Executive’s employment with the Company,
Executive must not engage in any work, paid or unpaid, that creates an actual
conflict of interest with the Company.
4.6. Breach of
Provisions. If Executive materially breaches any of the
provisions of this Article IV, or in the event that any such breach is
threatened by Executive, in addition to and without limiting or waiving any
other remedies available to the Company at law or in equity, the Company shall
be entitled to immediate injunctive relief in any court, domestic or foreign,
having the capacity to grant such relief, to restrain any such breach or
threatened breach and to enforce the provisions of this Article IV.
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4.7. Reasonable
Restrictions. The Parties acknowledge that the foregoing
restrictions, as well as the duration and the territorial scope thereof as set
forth in this Article IV, are under all of the circumstances reasonable and
necessary for the protection of the Company and its business
4.8. Specific
Performance. Executive acknowledges and agrees that the
Company’s remedies at law for a breach or threatened breach of any of the
provisions of Sections 1.3, 4.2, 4.3 or 4.4 hereof would be inadequate and, in
recognition of this fact, Executive agrees that, in the event of such a breach
or threatened breach, in addition to any remedies at law, the Company, without
posting any bond, shall be entitled to obtain equitable relief in the form of
specific performance, temporary restraining order, temporary or permanent
injunction or any other equitable remedy which may then be
available.
ARTICLE
V.
ARBITRATION
5.1. Scope. To
the fullest extent permitted by law, Executive and the Company agree to the
binding arbitration of any and all controversies, claims or disputes between
them arising out of or in any way related to this Agreement, the employment
relationship between the Company and Executive and any disputes upon termination
of employment, including but not limited to breach of contract, tort,
discrimination, harassment, wrongful termination, demotion, discipline, failure
to accommodate, family and medical leave, compensation or benefits claims,
constitutional claims; and any claims for violation of any local, state or
federal law, statute, regulation or ordinance or common law. For the
purpose of this agreement to arbitrate, references to “Company” include all
subsidiaries or related entities and their respective executives, supervisors,
officers, directors, agents, pension or benefit plans, pension or benefit plan
sponsors, fiduciaries, administrators, affiliates and all successors and assigns
of any of them, and this agreement to arbitrate shall apply to them to the
extent Executive’s claims arise out of or relate to their actions on behalf of
the Company.
5.2. Arbitration
Procedure. To commence any such arbitration proceeding, the
party commencing the arbitration must provide the other party with written
notice of any and all claims forming the basis of such right in sufficient
detail to inform the other party of the substance of such claims. In
no event shall this notice for arbitration be made after the date when
institution of legal or equitable proceedings based on such claims would be
barred by the applicable statute of limitations. The arbitration will
be conducted in Houston, Texas, by a single neutral arbitrator and in accordance
with the then-current rules for resolution of employment disputes of the
American Arbitration Association (“AAA”). The
Arbitrator is to be selected by the mutual agreement of the
Parties. If the Parties cannot agree, the Superior Court will select
the arbitrator. The parties are entitled to representation by an
attorney or other representative of their choosing. The arbitrator
shall have the power to enter any award that could be entered by a judge of the
trial court of the State of Texas, and only such power, and shall follow the
law. The award shall be binding and the Parties agree to abide by and
perform any award rendered by the arbitrator. The arbitrator shall
issue the award in writing and therein state the essential findings and
conclusions on which the award is based. Judgment on the award may be
entered in any court having jurisdiction thereof. The losing Party in
the arbitration hearing shall bear the costs of the arbitration filing and
hearing fees and the cost of the arbitrator.
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ARTICLE
VI.
MISCELLANEOUS
6.1. Binding Effect;
Assignment. This Agreement shall be binding upon and inure to
the benefit of the Parties and their respective legal representatives, heirs,
successors and assigns. Executive may not assign any of his rights or
obligations under this Agreement. The Company may assign its rights
and obligations under this Agreement to any successor entity.
6.2. Notices. Any
notice provided for herein shall be in writing and shall be deemed to have been
given or made (a) when personally delivered or (b) when sent by telecopier and
confirmed within 48 hours by letter mailed or delivered to the party to be
notified at its or his address set forth herein; or three (3) days after being
sent by registered or certified mail, return receipt requested (or by equivalent
xxxxxxx with delivery documentation such as FEDEX or UPS) to the address of the
other party set forth or to such other address as may be specified by notice
given in accordance with this section 6.2:
|
If to the Company:
|
Vertex
Energy, Inc.
0000
Xxxxxx , Xxxxx 000
Xxxxxxx,
Xxxxx 00000
Telephone:
___________
Facsimile:
___________
Attention:
_____________
|
|
If to the Executive:
|
Xxxxxxxx
X. Xxxxxx
XXXX XXXX XXX
XXXXX
XXXXXXX, XXXXX
XXXXX
Telephone:
___________
Facsimile:
___________
Attention:
_____________
|
6.3. Severability. If
any provision of this Agreement, or portion thereof, shall be held invalid or
unenforceable by a court of competent jurisdiction, such invalidity or
unenforceability shall attach only to such provision or portion thereof, and
shall not in any manner affect or render invalid or unenforceable any other
provision of this Agreement or portion thereof, and this Agreement shall be
carried out as if any such invalid or unenforceable provision or portion thereof
were not contained herein. In addition, any such invalid or
unenforceable provision or portion thereof shall be deemed, without further
action on the part of the parties hereto, modified, amended or limited to the
extent necessary to render the same valid and enforceable.
6.4. Waiver. No
waiver by a Party of a breach or default hereunder by the other party shall be
considered valid, unless expressed in a writing signed by such first party, and
no such waiver shall be deemed a waiver of any subsequent breach or default of
the same or any other nature.
6.5. Entire
Agreement. This Agreement sets forth the entire agreement
between the Parties with respect to the subject matter hereof, and supersedes
any and all prior agreements between the Company and Executive, whether written
or oral, relating to any or all matters covered by and contained or otherwise
dealt with in this Agreement. This Agreement does not constitute a
commitment of the Company with regard to Executive’s employment, express or
implied, other than to the extent expressly provided for herein.
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6.6. Amendment. No
modification, change or amendment of this Agreement or any of its provisions
shall be valid, unless in a writing signed by the Parties and approved by the
Compensation Committee.
6.7. Authority. The
Parties each represent and warrant that it/he has the power, authority and right
to enter into this Agreement and to carry out and perform the terms, covenants
and conditions hereof.
6.8. Attorneys’
Fees. If either party hereto commences an arbitration or other
action against the other party to enforce any of the terms hereof or because of
the breach by such other party of any of the terms hereof, the prevailing party
shall be entitled, in addition to any other relief granted, to all actual
out-of-pocket costs and expenses incurred by such prevailing party in connection
with such action, including, without limitation, all reasonable attorneys’ fees,
and a right to such costs and expenses shall be deemed to have accrued upon the
commencement of such action and shall be enforceable whether or not such action
is prosecuted to judgment.
6.9. Captions. The
captions, headings and titles of the sections of this Agreement are inserted
merely for convenience and ease of reference and shall not affect or modify the
meaning of any of the terms, covenants or conditions of this
Agreement.
6.10. Governing
Law. This Agreement, and all of the rights and obligations of
the Parties in connection with the employment relationship established hereby,
shall be governed by and construed in accordance with the substantive laws of
the State of Texas without giving effect to principles relating to conflicts of
law.
6.11. Survival. The
termination of Executive’s employment with the Company pursuant to the
provisions of this Agreement shall not affect Executive’s obligations to the
Company hereunder which by the nature thereof are intended to survive any such
termination, including, without limitation, Executive’s obligations under
Article IV of this Agreement.
[Signature
page follows]
-10-
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
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“COMPANY”
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VERTEX
ENERGY, INC.,
a
Nevada corporation
By:
/s/
Xxxxx Xxxxxxx
Name:
Xxxxx Xxxxxxx
Title: Secretary
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“EXECUTIVE”
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/s/
Xxxxxxxx X. Xxxxxx
Xxxxxxxx
X. Xxxxxx
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-11-
EXHIBIT
A
It is
acknowledged and agreed that the following actions, business transactions,
agreements and undertakings may be undertaken by Executive:
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·
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Executive
can serve as an officer, director or manager of any of the private
companies with whom he is currently affiliated, including Vertex Energy,
LP, VTX, Inc., Cross Road Carriers, Vertex Recovery, H&H Oil, Arrow,
Cedar Marine Terminal, Vertex Residual Management, B&S Xxxxxx, FLP,
Vertex Green, LP or Vertex Processing (collectively, the “Affiliated
Companies”);
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·
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Executive
may own an interest in or shares or membership units in any of the
Affiliated Companies. Executive may earn a fee for providing
services to the Affiliated
Companies;
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|
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·
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Through
the Affiliated Companies, the Executive can operate in the collection
generator business; buy, collect and transport and process used oil, crude
oil, refined products, chemicals and oily water; and collect, recycle and
process petroleum waste materials, such as, but not limited to, oily
water, sludges, tank bottoms, and mixed hydrocarbon
materials;
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·
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Vertex
Recovery or its subsidiaries may sell feedstock to the Company on a fair
market basis and receive a commission or fee based on such sales, as
determined by a yet to be drafted agreement between Vertex Recovery and
the Company;
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·
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Executive
may market and source feedstock to the best markets through any of the
Affiliated Companies;
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·
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Cedar
Marine Terminal may license (pursuant to a royalty free, perpetual, and
non-exclusive license) the rights to Demetalization Technology on terms
agreeable to the Company and Cedar Marine Terminal. Cedar
Marine Terminal may also charge the Company for terminalling and storage
costs for the Company’s products. Finally, Cedar Marine
Terminal will enter into an agreement with the Company whereby the Company
leases the land which its operations take place on, on terms to be
mutually agreed to between the
parties;
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·
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Cross
Road Carriers may transport the Company’s products from time to time, on
substantially similar terms as Cross Road Carriers charges its other
clients;
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·
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Any
Affiliated Party may sell products, equipment or materials to the Company
on terms mutually agreeable between the Company and such Affiliated
Party;
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·
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Vertex
Residual Management may contract with the Company or with Vertex LP on
behalf of the Company to provide the Company environmental compliance,
regulation and oversight services on terms mutually agreeable between the
parties;
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·
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Vertex
Green may focus on the development of renewable energy such as Biodiesel,
which entity shall be outside of the Company;
and
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·
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Any
other actions, business transactions, agreements and undertakings which
the Executive has received approval of a majority of the independent
members of the Board of Directors to enter into and/or
undertake.
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