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EXHIBIT 10.1
EXECUTIVE SERVICES AGREEMENT
THIS EXECUTIVE SERVICES AGREEMENT ("Agreement") is entered
into as of June 23, 1997, between OMEGA ENVIRONMENTAL, INC. ("Company"), a
Delaware corporation, having its principal place of business at 00000 Xxxxx
Xxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxxxx 00000, and XXXXXXXX XXXXXXXX ("Executive"),
whose address is 000 Xxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000.
AGREEMENT
In consideration of the premises and the mutual covenants
herein contained and other good and valuable consideration, receipt of which
each of the parties hereto acknowledges, it is hereby agreed as follows:
1. Services.
1.1 Services. The Company hereby contracts with Executive, and
Executive hereby agrees to perform management services for the Company in the
capacity of President and Chief Executive Officer for the period beginning on
the date of this Agreement and ending on the earlier of (i) December 31, 1997,
or (ii) earlier termination of the Agreement.
1.2 Reporting and Termination. Executive shall report solely
to the Board of Directors of the Company and shall comply with the policy
direction set by said Board. Either party may terminate this Agreement, with or
without cause, at any time, which termination shall be effective thirty days
from written notice to the other party. Notwithstanding any other provision of
this Agreement to the contrary, failure by the Company to make payments provided
for in Section 1.3 shall be deemed a termination by the Company. Executive shall
devote full time and attention to the performance of the services to be rendered
to the Company hereunder.
1.3 Compensation. During the term of this Agreement, the
Company shall pay Executive for the services to be rendered hereunder at the
rate of $35,000.00 monthly immediately upon Executive's submission of an invoice
containing appropriate supporting documentation. The Company shall also pay
Executive's reasonable expenses for travel, meals and lodging while traveling to
Seattle or on Company business. Executive shall be paid a retainer against
monthly invoicing of $35,000.00 and a $5,000.00 expense advance, payable upon
execution of this Agreement. In the event the Company or Executive terminates
this Agreement, Executive shall return any unused portion of the retainer or
advance paid hereunder after satisfaction of all outstanding invoices.
Additionally, the parties agree at a subsequent date to discuss providing the
Executive with the potential of earning a bonus or success fee for the
achievement of to be defined performance criteria.
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2. Independent Contractor. In performing services under this Agreement,
Executive shall at all times act as and be an independent contractor (and not an
employee of the Company) and, except as provided in Section 1.3 above, Executive
shall be solely liable for all his expenses and labor in connection therewith.
Executive agrees to take or forbear from taking all such action as may be
necessary or appropriate to establish and maintain his status as an independent
contractor. The Company and Executive agree that the Company is not required to
deduct from Executive's compensation any withholding, social security or other
taxes.
3. Confidential Information.
3.1 Acknowledgment. Executive acknowledges that, during the course
of rendering the services to the Company hereunder, he may acquire Proprietary
information and Trade Secrets of the Company (as hereinafter defined). For
purposes of this Agreement:
a. "Proprietary Information" shall mean all unpublished
materials and information created, discovered, owned, controlled or
otherwise known by the Company and/or in which property rights have
been assigned or otherwise conveyed to the Company, which
information has commercial or economic value. "Proprietary
Information" includes, without limitation, Trade Secrets (as
hereinafter defined), confidential information, data or other
information of the Company relating to products, processes, designs,
software programs, formulas, test procedures and results,
improvements, inventions or techniques, customer lists, business
plans, business affairs, marketing plans and strategies, and pricing
strategies or other subject matter pertaining to any business of the
Company.
The term "Proprietary Information" shall not include any
information which:
(i) is or becomes generally known or available through no
act or failure on the part of Executive;
(ii) is known by Executive at the time of receipt of such
information, as demonstrated by written documentation bearing a
date prior to the date of receipt of such information, where the
source of such information legally obtained such information and
the right to disclose it to Executive;
(iii) is hereafter furnished to Executive by a third party
without restriction on disclosure, where such third party
legally obtained such information and the right to disclose it
to Executive;
(iv) is developed by Executive independently of any
obligation to the Company and without violation of any rights
which the Company may have in such information.
b. "Trade Secrets" shall mean the whole or any portion or phase
of any business, scientific or technical information, design,
process, procedure, formula
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or improvement which is secret and not generally available to the
public, which Company considers confidential, and which gives the
one who uses it an advantage over competitors who do not know of or
use the Trade Secret. The term "Trade Secret" may include, without
limitation, information relating to any computer program listings,
source code or object code, computer (hardware or software) design
or architecture, or other information relating to processes,
programs, or products now existing or currently under design or
development.
3.2 Nondisclosure and Nonuse. The Executive agrees that he shall
not, directly or indirectly, either use or disclose to any third person any
Proprietary Information or Trade Secrets of the Company except as may be
necessary in the course of performing the services under this Agreement, in
which case the Executive will take reasonable steps to protect the
confidentiality of such information. The prohibitions contained in this
paragraph shall survive the termination of this Agreement.
4. Indemnification. The Company hereby agrees to indemnify and hold
harmless Executive, to the fullest extent allowed by law, from and against all
claims, demands and causes of action (including, without limitation, attorney
fees, court costs and other liabilities) in any way arising out of or in
connection with the services rendered to the Company by Executive under this
Agreement; provided, however, nothing in this Section shall impose on Company
the obligation to indemnify Executive with respect to any damages resulting
solely from Executive's intentional tort, criminal act, breach of fiduciary
duty, or act of gross negligence. The parties acknowledge that liability
insurance coverage for Executive is a key issue for Executive and that Executive
may terminate his services hereunder if coverage is not available. Therefore,
the Company will use its best efforts to provide coverage for Executive under
the Company's directors and officers liability insurance and other applicable
insurance programs. Executive shall not be responsible for any action of the
Board of Directors of the Company in following or declining to follow his advice
or recommendations.
5. General Provisions.
5.1 No Waiver. No provision of this Agreement shall be deemed to
have been waived unless such waiver is in writing signed by the waiving party.
No failure by any party to insist upon the strict performance of any provision
of this Agreement, or to exercise any right or remedy consequent upon a breach
thereof, shall constitute a waiver of any such breach, of such provision or of
any other provision. No waiver of any provision of this Agreement shall be
deemed a waiver of any other provision of this Agreement or a waiver of such
provision with respect to any subsequent breach, unless expressly provided in
writing.
5.2 Notices. All notices required or permitted to be given under
this Agreement shall be in writing.
5.3 Integration; Amendment. This Agreement constitutes the entire
agreement of the parties relating to the subject matter hereof. There are no
promises, terms, conditions,
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obligations, or warranties other than those contained in this Agreement. This
Agreement supersedes all prior communications, representations, or agreements,
verbal or written, among the parties relating to the subject matter hereof. This
Agreement may not be amended except in a writing executed by the parties.
5.4 Severability. Any provision of this Agreement that is deemed
invalid or unenforceable shall be ineffective to the extent of such invalidity
or unenforceability, without rendering invalid or unenforceable the remaining
provisions of this Agreement.
5.5 Assignment. No party may assign, sell, subcontract, delegate or
otherwise transfer its rights or obligations under this Agreement without the
prior written consent of the other party, and any attempted assignment or
delegation shall be void and without effect.
5.6 Governing Law, Service or Process and Venue. The parties hereto
intend that this Agreement shall be governed by and construed in accordance with
the laws of the State of Washington.
5.7 Attorney Fees and Court Costs. If any suit or action arising out
of or related to this Agreement is brought by any party, the prevailing party or
parties shall be entitled to recover the costs and fees (including without
limitation reasonable attorney fees), incurred by such party or parties in such
suit or action, including without limitation any post-trial or appellate
proceeding.
5.8 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute an agreement binding
on all the parties, notwithstanding that all parties are not signatories to the
same counterpart.
5.9 Survival. All rights and obligations shall cease upon
termination of this Agreement, except for the rights and obligations set forth
in or arising out of Sections 3, 4 and 5, which shall survive the termination of
this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
OMEGA ENVIRONMENTAL, INC.
By: /s/ Xxxxxx X. X' Xxxxxxxx
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Name: Xxxxxx X. X'Xxxxxxxx
Title: Chairman
EXECUTIVE
/s/ Xxxxxxxx Xxxxxxxx
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Xxxxxxxx Xxxxxxxx
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