Exhibit 99.1
Form of Employment and Covenant Not To Compete Agreement
Between
Miners Fuel Company, Inc.
And
Xxxxxxx Xxxxxx
EMPLOYMENT AND COVENANT NOT TO
COMPETE AGREEMENT
THIS AGREEMENT is made and entered into this __ day of August, 2001 by
and between MINERS FUEL COMPANY, INC., a Pennsylvania corporation, with its
principal offices located at Xxxxx 000 xxx Xxxxxxxxxx 00, Xxxxxxx, Xxxxxxxxxxxx,
00000 (Company), and XXXXXXX XXXXXX, an individual person residing in the State
of Pennsylvania (Employee).
WHEREAS, Phoenix Waste Services Company, Inc. (PWSC) intends to acquire
all of the outstanding stock of Company, as well as all of the outstanding stock
of Miners Oil Company, Inc. and Miners Environmental, Inc., the three entities
collectively hereinafter referred to as the Miners Entities; and
WHEREAS, upon the closing of the purchase by PWSC of the Miners
Entities, Employee wishes to become an employee of Company on the terms and
conditions herein contained.
BE IT RESOLVED AS FOLLOWS:
ARTICLE 1
Employment Terms and Conditions
1.1 Employment: Subject to the provisions of (paragraph) 6.14 below,
Company agrees to employ and retain Employee and Employee agrees to be employed
by Company, under the terms and conditions of this Agreement.
1.2 Place of Employment: The place of employment shall be at Company's
existing place of business in Tremont, Pennsylvania.
1.3 Term: Employee's employment shall commence on the closing of the
purchase of the Miners Entities by PWSC and shall continue for a term of Three
(3) years. At the option of Employee, the Term hereof may be extended for Two
One-Year terms (Option Periods).
1.3.1 At any time during the last Sixty (60) days of the Term hereof,
as may be extended by the Option Periods, Employee may exercise the option to
extend the Term of his employment for the first and second Option Period by the
Page 1
delivery to Company of written notice to Company indicating that Employee shall
remain employed by Company for One (1) year after the expiration of the current
Term.
1.4 Termination by Company: For whatever reason, Company may terminate
Employee at any time, without notice, providing that Company continues to pay
Employee's full salary for an Term hereof, except that, the benefits referenced
in (paragraphs) 1.5.2-6 below shall be terminated upon such termination of
Employee.
1.4.1 Termination by Company for Cause: Notwithstanding any other
provision hereof, Company may discharge Employee if Company's Board of Directors
determines that Employee (i) has been guilty of material malfeasance or
dishonesty in the performance of his duties for Company; (ii) has committed a
material breach of the confidentiality or non-competition provisions of this
Agreement set forth in Article 5 below; or (iii) immediately upon written notice
to Employee, if Employee has been unable to perform the essential functions of
his work with or without accommodation, due to physical or mental illness,
disability or incapacity for a period of Three (3) months.
1.4.2 Effect of Termination for Cause: In the event of a Termination
for Cause, this agreement will likewise terminate, except that, the provisions
of Article 4 shall survive said termination for the periods therein stated. In
addition, upon a Termination for Cause, Employee shall be only paid his accrued
salary to the date of said termination and any expenses owed. Incidental to a
Termination of Employee for Cause, Company reserves the right to exercise any
and all remedies that may be available to it in both law and equity, including
seeking injunctive relief and money damages.
1.4.3 Termination by Death: The death of Employee shall automatically
terminate this Agreement.
1.4.4 Employee's Obligation: Until such time as this Agreement is
terminated pursuant to this Article 4, or the Term hereof expires, absent death
or disability, Employee agrees to fulfill the terms of this Agreement.
1.5 Compensation: In consideration of the services to be rendered by
Employee, Company shall compensate Employee during the term hereof:
Page 2
1.5.1 Beginning on the date of employment, Employee shall be paid in
bi-weekly installments, a salary of One Hundred Fifty Thousand and no/100
Dollars ($150,000) per year.
1.5.2 Employee shall be entitled to participate in all Company health
insurance, dental insurance, life insurance, long term disability insurance,
retirement benefits, stock option plans, 401K programs, and other employee
perquisites which Company has in operation at the time.
1.5.3 Employee is entitled, in addition to the usual public holidays
observed by Company, to Six (6) weeks of annual vacation during the Term hereof.
1.5.4 Employee is entitled the use of a vehicle during Term hereof,
leased by Company, the monthly lease payments not to exceed Six Hundred and
No/100 ($600.00) per month. Company shall likewise bear the reasonable expenses
for operation, maintenance, repairs, licence and insurance with respect to said
vehicle.
1.5.5 Employee shall undertake substantially the same responsibilities
during the Term that he fulfilled prior to the commencement of the Term, and
Employee shall retain the authority to make all personnel decisions for the
Miners Entities during the Term.
1.5.6 Employee shall not be required to relocate his residence from his
current home in Pennsylvania during the Term, nor shall he be required to
complete unreasonable travel on behalf of Company.
ARTICLE 2
Employee's Duties
2.1 Title: Employee shall be an officer of Company and shall carry the
title of President and Chief Executive Officer (CEO).
2.2 Duties: Employee shall devote his employable time attention, skill
and efforts, not to exceed FORTY-FIVE (45) hours per work-week, to the faithful
performance of the duties of President and CEO of Company, and to the management
of the Miners Entities, and he shall carry out the mandates of Company's Board
of Directors in good faith and to the best of his ability.
Page 3
ARTICLE 3
Employee's Expenses
3.1 Reasonable Expense Reimbursement: Company shall reimburse Employee
in respect of all expenses properly and necessarily incurred in the performance
of his duties under this Agreement on production of appropriate supporting
vouchers and documents as Company may require.
ARTICLE 4
Confidentiality and Covenant Not To Compete
4.1 Covenant Not To Compete: During the term of this Agreement,
Employee shall not compete with Company, its affiliates, subsidiaries or parent,
or any successor of Company or any of its subsidiaries, either directly or
indirectly, nor engage individually or as an officer, director, employee,
consultant, advisor, partner or co-venture, or as a stockholder or other
proprietor owning more than Five Percent (5%) interest in any firm, corporation,
partnership or organization, in the business of (i) owning, operating, or
maintaining a solid waste transporting, processing or disposal company; (ii),
receiving, handling, transporting or disposing of asbestos waste; (iii) selling,
distributing, or transporting home heating oil or vehicle fuel. In event of any
such ownership or participation of Five Percent (5%) or less in any company
performing the services identified in sections (i)-(111) of this (paragraph)
4.1, Employee shall furnish a detailed statement to Company's Board of Directors
with respect to said ownership. It is intended and agreed that during the Term
of this Agreement, Employee shall knowingly perform no act which may confer any
competitive advantage on any enterprise competing with Company, its parent or
subsidiaries or any successor of Company or any of its subsidiaries.
4.2 Covenant Not To Compete Later: Employee agrees that for a period of
Five (5) years immediately following the termination of this Agreement:
4.2.1 He shall not, directly or indirectly, solicit, divert or take
away any customers of Company who were or became customers of Company during the
term of his employment or within Six (6) months immediately following the
termination date of this Agreement.
4.2.2 He shall not, directly or indirectly, for himself or on behalf of
any person, firm or corporation, promote, assist, manage, or consult for any
enterprises engaged in the businesses or activities described in sections
Page 4
(i)-(111) of (paragraph) 4.1, which is competitive with the companies, projects,
ventures or plants owned and sold by Company or PWSC, or any of either's
affiliates or subsidiaries or successors, except that, Employee shall be allowed
to participate in the management of Ideal Consulting and Investment Corp.
4.2.3 He shall not solicit, offer to employ or employ for himself or
for any person, firm or corporation any person who was employed by Company or
any successor of Company or any of its subsidiaries, within a period of one (1)
year prior to the termination of this Agreement, unless such person is released
from his employment by Company.
4.3 Confidentiality: Without the authorization of Company's Board of
Directors, during the term of this Agreement and for Five (5) years after the
termination of this Agreement, Employee shall not for any reason publish or
disclose, or authorize anyone to publish or disclose, any confidential
information or trade secrets relating to the business of Company or any of its
subsidiaries, parents or affiliates, obtained by Employee during his employment
with Company.
4.3.1 Business Records: All business records, papers and documents kept
or made by Employee relating to the business of Company or any of its
subsidiaries, parents or affiliates shall be and remain the property of such
corporations and shall be surrendered to Company upon termination of Employee's
employment for any reason.
4.3.2 Inventions: Employee shall assign and does hereby assign to
Company, its successors and assigns, all of his rights to any products, systems
or processes relating to the business of Company, which he develops or conceives
during the Term hereof, whether developed solely or jointly with others, with
the use of Company's materials or facilities or at the written direction of
Company's Board of Directors or which directly relates to any product of Company
being marketed or in development during the Term of this Agreement.
4.3.3 Assistance: Employee agrees to execute, acknowledge, and aid in
the preparation of all such further papers, including applications for patents,
as may be necessary to obtain patents for such products, systems or processes
discussed in (paragraph) 4.3.2 above, in any and all countries, and to vest
title in Company, its successors or assigns.
Page 5
4.4 Limitation on Covenants: In the event any covenant made in this
Article 4 shall be more restrictive than permitted by applicable law, it shall
be limited to the extent which is so permitted. Nothing in this Agreement shall
be construed as preventing Company from pursuing any and all other remedies
available to it for breach or threatened breach of covenants made herein,
including injunctive relief and the recovery of money damages from Employee.
ARTICLE 5
Disputes
5.1 Writing: Any and all claims made by either party (Claimant) against
the other hereunder shall be in writing and shall be received by the party
against whom the claim is made (Respondent) within Thirty (30) days of the date
the Claimant knew or should have known of the existence of the claim. Any such
claim not received by the Respondent within such time shall be deemed to have
been waived.
5.2 Good Faith Negotiation: Upon the receipt of a claim by a
Respondent, the Respondent shall make itself available within TEN (10) calendar
days to enter into up to Thirty (30) calendar days of good faith negotiations to
settle the dispute. At the end of Thirty (30) calendar days, if the dispute is
not settled, the dispute may be referred to arbitration in accordance with
(paragraph) 5.3 below.
5.3 Arbitration: Only after Thirty (30) calendar days of good faith
negotiations, a dispute may be referred to arbitration in accordance with the
rules and procedures of the American Arbitration Association. If the amount in
controversy exceeds $100,000, it shall be heard by a panel of three arbitrators,
one selected by each party and the third selected by the other two arbitrators.
All disputes involving amounts $100,000 or less shall be decided by a single
arbitrator.
5.4 Final Decision: The ruling of the arbitrator shall be considered
final, and each party hereto hereby agrees that it shall not contest the
jurisdiction of the arbitrator(s) to decide the dispute; except that, either
party may appeal the ruling of the arbitrator(s) to the proper State or Federal
court on grounds other than jurisdictional questions.
5.5 Arbitration Expenses and Attorney Fees: In connection with any
dispute referred to arbitration, each party shall be responsible for its own
Page 6
expenses of the arbitration and attorney fees. In those situations where an
award is made to both parties, the arbitrator(s) shall allocate the arbitration
expenses and attorney fees as the arbitrator(s) deems fair and reasonable.
ARTICLE 6
Miscellaneous
6.1 No Other Agreement: This Agreement represents the entire agreement
of the parties, and it shall not be modified by any proposal, bid, estimate,
conversation, submittal, or other form of communication between Company and
Employee before the date when this Agreement is fully executed. This Agreement
cannot be modified by oral agreements, and may be modified only by a writing
signed by Company and Employee.
6.2 Successors and Assigns: This Agreement is binding upon, and fully
enforceable against, the successors and assigns of both parties.
6.3 Governing Law: This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without reference to conflict
of laws provisions.
6.4 Notice: All notices, consents, approvals and other communications
provided for in this Agreement or given in connection herewith, shall be validly
given, made, delivered or served, if in writing and delivered personally, sent
by nationally recognized overnight delivery service, sent by fax or telecopy, or
sent by registered or certified mail, postage prepaid, return receipt requested,
and in each case, addressed to the parties as follows:
If to Company: Miners Fuel Company, Inc.
c/o Phoenix Waste Services Company, Inc.
00 Xxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Telecopy No. 000-000-0000
If to Employee: Miners Fuel Company, Inc.
Xxxxx 000 xx Xxxxxxxxxx 00
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Telecopy No. 000-000-0000
Page 7
or to such other address as either party to this Agreement may from time to time
designate in writing by notice in like manner. All such notices, consents,
approvals and communications shall be effective upon receipt and, if by fax or
telecopy, confirmation of receipt by the addressee.
6.5 Severability: If any provision of this Agreement or the application
thereof to any person or circumstances shall be invalid or unenforceable to any
extent, the remainder of this Agreement and the application of such provisions
to other persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
6.6 Exhibits: All exhibits described, if any, and attached hereto are
fully incorporated into this Agreement by this reference for all purposes.
6.7 No Waiver: No waiver of a breach of any of the covenants contained
in the Agreement shall be construed as a waiver of any prior or succeeding
breach of the same covenant or any other covenant of this Agreement.
6.8 Writing: No modification, release, discharge or waiver of any
provision hereof shall be of any force or effect unless in writing and signed by
both parties hereto.
6.9 Invalidity: If any term, covenant or provision of this Agreement
shall be held to be invalid, illegal or unenforceable in any respect, this
Agreement shall remain in effect and be construed without regard to such
provision.
6.10 Agency: No party to this Agreement shall have any responsibility
whatsoever with respect to services provided or contractual obligations assumed
by the other party to third parties, and nothing in this Agreement shall be
deemed to constitute either party a partner, agent or local representative of
the other party, or to create any fiduciary relationship between the parties or
to create the relationship of employer-employee.
6.11 Agreement Interpretation: Each party to this Agreement has read,
understood, and had the option to obtain qualified legal counsel to interpret
its legal effect. Accordingly, it is agreed that the usual rule of contract
interpretation causing ambiguities to be resolved in favor of the non-drafting
party shall not apply to the interpretation of this Agreement.
Page 8
6.12 Further Mutual Assurances: Each of the Parties hereto undertakes
with each other to do all things reasonably within its power, which are
necessary or desirable to give effect to the spirit and intent of this
Agreement.
6.13 Best Efforts: The Parties hereto shall use their respective best
endeavors to, insure that any necessary third party shall do, execute, and
perform all such further deed, instruments, documents, assurances, acts and
things as any of the Parties may reasonably require and request in writing to
carry the provisions of this Agreement to full force and effect.
6.14 Legal Effect of Agreement: It is understood by and between the
parties hereto that this Agreement shall be signed contemporaneously with an
Asset Purchase Agreement and Stock Purchase Agreements to be entered into
between PWSC and the Sellers therein described. However, this Agreement shall
have no legal effect whatsoever until such time as the closing of the Asset
Purchase Agreement and Stock Purchase Agreements, at which time this Agreement
shall automatically take full force and effect and bind the parties hereto.
6.15 Directors and Officers Liability Coverage: During the Term hereof,
Employee shall be covered under Company's Directors and Officers Liability
Policy, or under Company's Parent's Directors and Officers Liability Policy, in
an amount deemed appropriate by Employee and Company.
WE AFFIX OUR HANDS AND SEALS ON THE DATE FIRST ABOVE WRITTEN
MINERS FUEL COMPANY, INC.
By /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxx
Secretary
Xxxxxxx Xxxxxx
/s/ Xxxxxxx Xxxxxx
-------------------------------------
* * * * *
Page 9
