ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement") entered into this
date by and between, Atlantic Petroleum Technologies of Louisiana,
Inc., a Louisiana corporation (hereinafter referred to as "Seller") and
APTL, L.L.C., a Louisiana limited liability company (hereinafter
referred to as "Buyer"),
W I T N E S S E T H
WHEREAS, Seller operates a service station renovation and
underground storage tank removal business;
WHEREAS, Buyer desires to purchase, and Seller desires to sell,
various assets used in Seller's business and other Assets hereinafter
set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties hereto agree as follows:
I. DEFINITIONS
1.01 As used herein, the following words and phrases shall have
the indicated meanings.
"Accounts Receivable" shall mean all of Seller's unpaid accounts
receivable existing on the Closing Date.
"Assets" shall mean, individually, collectively and
interchangeably, Seller's rights under: (i) the Written Contracts shown
on Exhibit 1; (ii) the Fixed Assets shown on Exhibit 2; (iii) the
Intellectual Property Rights shown on Exhibit 3; and (vi) the Other
Intangible Assets shown on Exhibit 4, including without limitation all
equipment leases and building leases.
"Business" shall mean Seller's environmental/hazardous waste
concern.
"Closing Date" shall mean the date to be selected by the mutual
agreement of the parties to be the effective date of the consummation
of the transactions contemplated here, which date shall occur no later
than May 29, 1998, except as may be modified by mutual consent of the
parties or as extended in accordance with the provisions of Section
4.02.
"Knowledge" shall mean actual knowledge without the necessity of
independent investigation or extensive inquiry.
"Execution Date" shall mean the date this document is signed by
the last of the parties to do so.
"Marketing Area" shall mean any of the geographical areas,
consisting of the parishes/counties set forth on Exhibit 5 hereto, in
which Seller presently operates the Business.
"Other Intangible Assets" shall mean all of Seller's customer
lists, customer records, software and other incorporeal movables used
in connection with the Business and all of its goodwill arising from
the conduct of the Business, including all documents and records
pertaining to all customer and/or client data and/or data generated by
or received from customers and/or clients also including all
correspondence between Seller and customers and/or clients and an
account history of each of Seller's customers.
"Trade Debt" shall mean all sums due or to become due to any
creditor of Seller arising from or in any manner related to Seller's
operation of the Business prior to the Closing Date.
1.02 In the event that a term or phrase not defined in Section
1.01 has a particular and accepted meaning in the environmental
industry, then such term or phrase is used herein with that meaning.
II. SALE AND PURCHASE
2.01 Sale of Assets and Assumption of Obligations. On the terms
and subject to the conditions herein expressed, and based on the
representations, warranties and agreements contained herein, Seller
agrees to sell, and Buyer agrees to buy, as of the Closing Date all of
the Assets for the price herein set forth and Buyer agrees to assume
only those obligations set forth on Exhibit 5 which is attached hereto
and made a part hereof. Seller and Buyer further agree that if the
assumption of any all of the aforesaid obligations would subject Buyer
to be potentially liable for any or all obligations of Seller which are
not expressly assumed by Buyer, then Buyer shall have the right to
recede from this agreement which shall then make this agreement void ab
initio.
2.02 Price. The price for which Buyer shall purchase the Assets
shall be the aggregate sum of $100,000.00 together with a potential
deferred payment ("Deferred Payment") as hereinafter defined provided
that upon confection of the sale Seller directs that $20,000.00 from
the first payment shall be made to Primary Systems, L.L.C. The cash
portion of the sale shall be reflected by two promissory notes
("Notes") in the form of the notes shown on Exhibit A and A-1 which are
attached hereto and made a part hereof. The Notes shall be payable in
two installments with the first installment of $30,000.00 due 90 days
from the Closing Date and the second installment of $50,000.00 due 12
months from the Closing Date. Buyer's obligation to pay the Notes
shall be secured by a letter of credit in the form and substance as
shown on Exhibit B which is attached hereto and made a part hereof (the
"LC"). The Deferred Payment, if any, shall be set in value in an
amount equal to the product of 1.2 times the EBITDA amount of Buyer.
(Earnings Before Interest, Taxes, Depreciation, Amortization.)
Provided notwithstanding herein the EBITDA value shall be deemed to
have a value zero in the event a minimum of $3,000,000.00 in revenues
with an EBITDA of $400,000.00 is not derived by the Buyer during the
first full 12 months following the Closing Date. However, in the event
the conditions are met for the Deferred Payment, then in such event the
aforesaid fixed value of the Deferred Payment shall be due upon the
acquisition or merger of Buyer, or its designee in the event Buyer
assigns this agreement prior to purchase, and/or the sale of all and/or
substantially all of the Assets of Buyer. Payment of the Deferred
Payment rights shall be in the form of cash and/or an equivalent dollar
amount of the publicly traded stock in the event Buyer merges with a
publicly traded company, at the option of Buyer, upon the conclusion of
such event and upon Buyer receiving full payment pursuant to such
transaction. The aforesaid Deferred Payment shall not appreciate over
time nor shall any interest be accorded such rights nor shall such vest
any ownership or equity interest for Seller in Buyer nor shall Seller
have any rights to vote on and/or consent to any sale and/or
acquisition and/or merger and/or other liquidation of any and/or all of
the assets of Buyer. Provided further, notwithstanding anything herein
to the contrary, the Deferred Payment shall not be applicable in the
event Buyer should voluntarily liquidate and/or be subject to
liquidation under the bankruptcy laws of the United States. Further,
the aforesaid Deferred Payment shall be non-assignable by Seller except
that Seller may assign its rights herein to Ally Capital Corporation
("Ally") on the Closing Date. However, in the event of such an
assignment, for one year following the Closing Date, Ally may not (i)
assign its rights hereunder, except for an assignment and/or pledge to
Environmental Allies, NV, or (ii) subject its rights herein to being
pledged and/or used for security. Provided not withstanding anything
herein to the contrary, Buyer shall not voluntarily liquidate the
business holding the Assets within the first 36 months from the Closing
Date.
2.03 Waiver of warranties. All of the Assets will be sold "as
is" and "where is" and without any warranty of any nature or kind,
whether granted by operation of law or otherwise and Seller, further,
makes no warranty of fitness of any such Assets. Buyer expressly
waives any and all warranties pertaining to the condition of the
Assets, including all express and implied warranties as to the fitness
of the Assets for a particular use, as well as, those warranties
against redhibitory or other hidden or latent defects (i.e. defects in
the Assets which render their use so inconvenient or imperfect that the
Buyer would not have purchased had the Buyer known of the vice or
defect), including without limitation, that warranty imposed by
Louisiana Civil Code Article 2476 with respect to Seller's warranty
against latent or hidden defects. Buyer forfeits the right to void the
sale or reduce the purchase price on account of any vice or defect
(whether hidden, latent or either) in the Assets sold, whether pursuant
to Louisiana Civil Code Article 2520 et. seq. or otherwise. Buyer
acknowledges that the waiver of warranty set forth in this Section has
been pointed out to Buyer and that Buyer fully understands and agrees
to the scope of the waiver herein set forth.
III. CONDITIONS TO BE SATISFIED BY SELLER
3.01 It shall be a condition precedent to Buyer's obligations
hereunder that Seller, at Buyer's expense as to the cost of securing
and/or providing any of the certificates hereinafter mentioned, shall
have satisfied fully, completely and in a timely manner each and every
one of the following conditions; provided, with the exception of the
provisions of subparagraph B of this section, all such conditions shall
be deemed waived by Buyer in the event Buyer closes the purchase and
sale described herein: (Nothing herein shall impose any liability
and/or any obligation to Buyer for any debts owed and/or liens and/or
encumbrances which may be reflected on any of the certificates provided
by this paragraph. Seller shall remain liable for any and all such
obligations which are not otherwise expressly assumed by Buyer.)
A. Delivery to Buyer, at least two (2) days before the Closing
Date, lien searches in the name of Seller of the following
records: (i) the Mortgage Records of
Xxxxxxxxx Xxxxxx, Louisiana and the appropriate records of
Delaware County, Pennsylvania; and (ii) the UCC master index
maintained by the Louisiana Secretary of State and the
Pennsylvania Secretary of State. Each such lien search shall
negate the existence of any liens, encumbrances, or other
matters against Seller and/or any of the Assets other than
encumbrances for which Seller shall obtain and deliver on the
Closing Date full and complete releases.
B. On or before the Closing Date, delivery of full and complete
releases of each and every lien, encumbrance and other matter
reflected on any of the lien searches described in Subsection
A above, including, upon the intended assignment of the Notes
and the contractual rights of the sale contract contemplated
by this Agreement to Ally, which assignment shall occur
within two hours of the execution of the sale herein on the
Closing Date, a termination and/or a release of any and all
security interest and/or mortgages held in favor of Ally.
Provided notwithstanding anything in this Agreement to the
contrary, including without limitation the waiver of any
condition by closing the sale contemplated herein, it is
specifically understood and acknowledged that in the event
all necessary legally binding termination statement(s) and/or
release(s) and/or mortgage cancellation(s) are not received
by Buyer from Ally, as to the Assets, within two and one-half
hours of the execution of the Purchase and Sale Agreement
contemplated herein then in such event the Purchase and Sale
Agreement, as contemplated by article VII, shall be null and
void and without effect. Provided further that Buyer shall
not be obligated to deliver the Notes to Seller until Buyer
has received from Ally the aforesaid documents as to the
release of all of its securities interests on the Assets.
(The parties expressly acknowledge that any and all debt owed
to Ally remains the obligation of Seller and is not being
assumed by Buyer.)
C. Delivery of certificates from taxing authorities in all
jurisdictions in which Seller is doing business including
without limitation Xxxxxxxxx Xxxxxx, Louisiana, reflecting
that all sales and use taxes and movable property taxes
assessed against Seller and/or the Assets have been paid in
accordance with the tax returns filed for the years during
which Seller has operated the Business.
D. Delivery of certified copies of all necessary resolution from
the board of directors and from the shareholders of Seller
authorizing the transaction contemplated herein and
designating the appropriate agent to act on behalf of Seller
3.02 In the event that Seller has not satisfied any of the
foregoing conditions when and as required under the terms of this
article, then the provisions of Section 4.02 shall apply.
IV. CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS
4.01 Subject to the provisions of section 3.01 (B), it shall be
a condition precedent to all of Buyer's obligations hereunder that the
following events shall have occurred on or before the Closing Date
provided that if Buyer elects to close the purchase and sale described
herein all such conditions shall be deemed waived with the exception of
the representations and warranties made by Seller. Provided that in no
event shall a breach of any such representation and/or warranty give
Buyer the right not to pay any installments due under the Notes and/or
make any setoff against the Notes:
A. Full and complete satisfaction by Seller of each and every
one of the obligations herein imposed upon Seller, including
without limitation each and every one of the conditions set
forth in Section 3.01, when and as required under the terms
of this Agreement and the provisions of Article VIII.
B. Issuance to Buyer of all licenses and permits as may be
required by the State of Louisiana, and of any other
governmental entity within the State of Louisiana and/or any
other jurisdiction for Buyer's operation of the Business
within the Marketing Area. Buyer covenants that, to the
extent possible under law, on or before May 26, 1998, it will
make application for all such licenses and permits, and
Seller agrees to exert its best efforts to assist Buyer in
obtaining any and all such licenses and permits.
C. (1) There shall be no temporary restraining order,
preliminary or final injunction or other order in effect that
enjoins, restricts, restrains, sets aside or invalidates the
transactions contemplated by this Agreement, and (2) there
shall be no litigation, proceeding, governmental
investigation, claim or action pending or threatened to
enjoin, restrict, restrain, set aside or invalidate the
transactions contemplated by this Agreement, other than
routine collection matters in which the collection or
enforcement of an Account Receivable is opposed or resisted.
D. Seller's delivery to Buyer of all the documents and other
items required to be delivered to Buyer hereunder, including
those to be delivered on the Closing Date pursuant to Section
7.02 of this Agreement.
E. The representations and warranties of Seller contained in
this Agreement shall be true and correct in all material
respects on the Closing Date as if made as of that time and
shall be made again by Seller on the Closing Date and Seller
shall have complied in all material respects with all
agreements, covenants and conditions required by this
Agreement to be performed or complied with by it prior to or
on the Closing Date and Seller shall have delivered to Buyer
certificates of Seller, dated as of the Closing Date and
executed by authorized officers of Seller, certifying in such
detail as Buyer reasonably may request to the fulfillment of
the foregoing.
F. The business, operations, financial position, market share or
future prospects of Seller shall not have materially declined
since December 1, 1997, and Buyer shall have received no
adverse information, of a material nature, from any person
relative to Seller's business, which information, in the
opinion of Buyer, materially increases the likelihood or
possibility of loss to Buyer or which materially decreases
the value of the Assets. For the purposes of this
subparagraph, information from any person is defined to mean
information received by a person who shall have or who has
had business and/or business relations with Seller or any
person who is knowledgeable of the industry of Seller and/or
Seller's customers and/or Seller's advisers.
G. Buyer's ability to negotiate an employment contract on terms
acceptable to Buyer in Buyer's sole discretion with three of
Seller's employees; namely, Xxxxx XxXxxxxxxx, Xxxx Xxxxxx,
Xxxxxxx XxXxxxxxxx. Provided further that any and/or all
such contracts must be executed no later than April 16, 1998
with the enforcement of their obligations subject to the
suspensive conditions of the confection of the passage of an
act of sale being fully consummated on the Closing Date and
Seller terminating its present employment agreement with any
such contracting employee(s) including without limitation the
complete termination of any covenant not to compete and/or
non-disclosure and/or confidentiality agreement on the
Closing Date.
H. Buyer receiving all documentation relative to any and all
outstanding obligations which may be assumed by Buyer under
this agreement.
4.02 Buyer's obligations hereunder are expressly contingent upon
the satisfaction of each and every one of the foregoing conditions
precedent, including without limitation Buyer's obtaining all licenses
and permits described above upon terms satisfactory to Buyer in Buyer's
sole discretion. Provided that notwithstanding any provision herein to
the contrary, with the exception of section 3.01 (B), if Buyer closes
the purchase and sale described herein all such terms and conditions
shall be deemed waived with the exception of all representations and
warranties made by Seller. If any of such conditions precedent has not
been fully and completely satisfied as required, then either party may,
provided that the non-satisfaction is not attributable to his fault,
elect to extend this Agreement for an additional term of up to 30 days
in order to allow additional time for satisfaction of all such
conditions precedent. If neither party elects to so extend, or, if at
the expiration of the extended term any of such conditions precedent
still remains unsatisfied, then either party may (provided the non-
fulfillment of the condition is not attributable to his fault), without
penalty, terminate this Agreement, whereupon each party shall be
relieved of all obligations hereunder.
V. SELLER'S REPRESENTATIONS AND WARRANTIES
5.01 In order to induce Buyer to enter into this Agreement and to
consummate the transactions contemplated hereby, Seller warrants and
represents to Buyer as follows:
A. Seller is a corporation duly organized, validly existing and
in good standing under the laws of the State of Louisiana.
Seller shall have full corporate power and authority on the
Closing Date to sell, convey, assign and transfer to Buyer
all of the Assets. Seller has full corporate power and
authority to execute and deliver this Agreement and all
agreements and instruments contemplated to be executed and
delivered by Seller under this Agreement and to perform all
of its obligations hereunder and thereunder, and the
execution, delivery and performance by Seller of this
Agreement, and the consummation of the transactions
contemplated herein, have been duly authorized by all
corporate action necessary on the part of Seller, including
the necessary consent to the sale of substantially all of
Seller's assets of the legally required number of the
shareholders of Seller in accordance with Louisiana law. No
other corporate proceeding on the part of the Seller and no
approval of any federal, state or local authority,
administrative agency, or court is necessary to authorize or
permit the execution, delivery, or performance of this
Agreement by Seller. This Agreement has been duly executed
and delivered by Seller and constitutes the legal, valid and
binding obligations of Seller enforceable against Seller in
accordance with its terms, except as may be limited by
bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally.
B. Except for Seller's obligation to Ally, which obligation
Seller shall satisfy as to the Assets being sold within two
hours following the closing, the execution and delivery by
Seller of this Agreement, the sale, conveyance, assignment
and transfer of the Assets to Buyer, and the performance by
Seller of the obligations and undertakings created hereunder
will not (1) violate or conflict with the articles of
incorporation or by-laws of Seller and will be consummated in
conformity with Louisiana laws pertaining to the necessary
authorization to transfer all or substantially all of the
assets of a corporation (2) result in a breach, default,
termination, acceleration or forfeiture under any provision
of any obligation, note, contract, agreement or instrument to
which Seller is a party, by which Seller is bound, or to
which any of the Assets being transferred are subject, or (3)
violate any order, judgment, decree, compliance agreement,
statute, ordinance, rule or regulation applicable to Seller
or to the Assets.
C. Other than the liens and security interests of Ally Capital,
the Assets are subject to no liens, mortgages or encumbrances
whatsoever and same shall be so as of the Closing Date.
Provided that Buyer takes cognizance that the Assets
presently collateralize that certain loan agreement between
Primary Systems, L.L.C., and Seller and Seller and Ally.
D. Subject to the provisions of subparagraph C, on the Closing
Date, Buyer will acquire good, valid, marketable and
unencumbered title to each and every one of the Assets, free
and clear of all claims, rights, title, liens, privileges,
security interests or other matters of or in favor of any
person associated with Seller's interest prior to the
transfer contemplated by this Agreement.
E. Seller has disclosed to Buyer all information in its
possession which Buyer has requested as well as all
information in its possession which is relevant to the
Business or the present and future operations of the Business
after Seller has made a due and diligent effort to locate and
provide all such information in Seller's possession.
F. The sworn statement required under Section 3.01(D) will be,
as of the Closing Date, complete, accurate and correct in
every respect to the best of Seller's knowledge and belief.
G. The only tax identification number of Seller is and has been
TIN 00-0000000, with the exception that the Seller was
involved in joint venture and the Pennsylvania Department of
Revenue erroneously reflected the tax identification number
for Seller as 00-0000000.
H. Seller has delivered to Buyer true and complete copies of the
Seller's balance sheets for the fiscal years ending August
31, 1996 and 1997, and the Seller's statements of income,
cash flow and changes in shareholders' equity for each of the
years in the two-year period ending August 31, 1996 and 1997,
including the notes thereto (collectively, the "Annual
Financial Statements;" the latest-dated balance sheet
included in the Annual Financial Statements is referred to
herein as the "Latest Balance Sheet"). The Annual Financial
Statements have been prepared and all financial statements
subsequent thereto and prior to the consummation of this
purchase will be prepared, in accordance with Generally
Accepted Accounting Principles ("GAAP"), applied on a
consistent basis and present fairly in all material respects,
or will present fairly in all material respects, as the case
may be, the financial position, results of operations and
cash flow of the Seller at the respective dates thereof and
for the periods referred to therein, other than for any sales
tax, income tax, franchise tax or any other tax whether
federal, state or local. As of the date of the latest
balance sheet, neither the Seller, nor any of its assets was
subject to, any liability commitment, indebtedness or
obligation (of any kind whatsoever, whether absolute,
accrued, contingent, known, matured or unmatured) which is
material and not reflected in the Latest Balance Sheet,
whether or not such liability, commitment, indebtedness or
obligation is required to be so reflected. Seller further
agrees to provide Buyer with a copy of Form 10Q for the first
quarter of 1998 filed with the Securities and Exchange
Commission by Seller's parent Chemfix Technologies, Inc., in
the event same has been prepared.
I. Since the date of the Annual Financial Statements for the
fiscal period ending November 30, 1997, other than changes in
the ordinary course of business, there has not been any
change in the business, financial condition or results of
operations of the Seller, the dollar effect of which is not
reflected in the monthly reports of the Seller made available
to Buyer or that was not otherwise disclosed to Buyer;
1. except in the ordinary course of business consistent with
past practices, (i) borrowed any money, (ii) loaned any money
or pledged any of its credit in connection with any aspect of
its business, (iii) mortgaged or otherwise subjected to any
lien, encumbrance or other liability any of its assets, (iv)
sold, assigned or transferred any of its assets or
properties, or (v) incurred any liability, commitment,
indebtedness or obligation (of any kind whatsoever, whether
accrued, contingent, known, matured or unmatured);
2. suffered any damage, destruction or loss, whether or
not covered by insurance;
3. failed to operate its business in the ordinary course
consistent with past practices, or failed to preserve its
business organization intact or to preserve the good will of
its customers and suppliers and others with whom it has
business relations;
4. incurred any substantial loss or waived any substan-
tial right in connection with any aspect of its business.
This statement of condition shall be limited solely to any
loss or waiver the dollar amount of which exceeds $10,000;
5. canceled, terminated or modified any debt owed to it or
any of its claims or other rights other than in the ordinary
course of business;
6. paid any of its noncurrent obligations or liabilities;
7. made any capital expenditure or capital addition or
betterment in excess of $25,000 singularly or in the
aggregate;
8. entered into any written or oral agreement or other
understanding requiring the payment, conditionally or
otherwise, of any salary, bonus, extra compensation, pension
or severance payment to any of its present or former
directors, officers or employees, except that certain
agreement with Xx XxXxxxxx and except such agreements as are
terminable at will without any penalty or other payment by it
or increased by more than 5% the compensation (including
salaries, fees, bonuses, profit sharing, incentive, pension,
retirement or other similar payments) of any such person
whose annual compensation would, following such increase,
exceed $30,000;
9. or changed any accounting practice followed or employed
in preparing the Annual Financial Statements;
10. declared or paid any dividend or distribution; or
12. entered into any agreement, contract or commitment to
do, or which could reasonably be expected to result in, any
of the foregoing.
J. Any real property and other assets held under lease by the
Seller is held under valid, subsisting and enforceable
leases. With respect to each lease of any real property or
moveable property to which the Seller is a party, (i) such
lease is in full force and effect in accordance with its
terms; (ii) all rents and other monetary amounts that have
become due and payable thereunder have been paid; (iii) there
exists no default, or event, occurrence, condition or act,
which with the giving of notice, the lapse of time or both
would become a default, under such lease; and (iv) neither
this Agreement nor the transactions contemplated by this
Agreement will constitute a default or a cause for
termination or modification of such lease.
K. Exhibit 3 hereto contains a complete list of all patents and
patent rights, trademarks and trademark rights, trade names
and trade name rights, service marks and service xxxx rights,
service names and service name rights, brand names,
copyrights and copyright rights registered with the U.S.
Register of Copyrights, and all pending applications for and
registrations of patents, trademarks, trade names service
marks and copyrights, owned or used by or licensed to the
Seller (the "Seller's Intellectual Property"), all of which
Seller's Intellectual Property shall be owned by the Seller
as of the Closing Date, free and clear of any liens, claims,
charges, options, encumbrances or similar restrictions or
claims, except for the Ally liens. Except for franchise
agreements and development agreements entered into in the
ordinary course of business and as set forth in Exhibit 3
hereto, no licenses, sublicenses or other agreements in
respect of such Seller's Intellectual Property have been
granted or entered into by the Seller or any affiliate of the
Seller. The Seller owns or has the legal right to use all
Seller's Intellectual Property. The conduct of its business
by the Seller does not infringe or otherwise conflict with
any rights of any person in respect of any Seller's
Intellectual Property and none of the Seller's Intellectual
Property is being infringed. To Seller's knowledge no claim
or demand of any person has been made nor is there any
proceeding that is pending, or threatened, which (i)
challenges the rights of the Seller in respect of any
Seller's Intellectual Property, or (ii) asserts that the
Seller is infringing or otherwise in conflict with, or is
required to pay any royalty, license fee, charge or other
amount with regard to, any Seller's Intellectual Property.
None of the Seller's Intellectual Property is subject to any
outstanding order, ruling, decree, judgment or stipulation by
or with any court, arbitrator, or administrative agency, or
has been the subject of any litigation within the last five
years, whether or not resolved in favor of the Seller. The
Seller has taken, or has caused to be taken, such necessary
or desirable actions to ensure that the patents and
trademarks owned by the Seller, have been duly registered
under any applicable laws or regulations in the appropriate
filing office, domestic and foreign, and such registrations
are in full force and effect.
L. Seller is not a party to or bound by, the terms of any
collective bargaining agreement, and Seller has experienced
no material labor difficulties during the last five (5)
years. There are no labor disputes existing, threatened,
involving, by way of example, strikes, work stoppages,
slowdowns, picketing, or any material interference with work
or production, or any other concerted action by employees.
No written grievance or other legal action arising out of any
collective bargaining agreement or employee relationship
exists or is threatened. No charges of which the Seller or
any Partnership in which the Seller is a partner has received
written notice and to Seller's knowledge no proceedings
before the National Labor Relations Board, or similar agency,
exists, or are threatened.
M. Seller has received no written notice of any legal
proceedings, charges, complaints, or similar actions under
any federal, state or local laws affecting the employment
relationship including, but not limited to: (i) anti-
discrimination statutes such as Title VII of the Civil Rights
Act of 1964, as amended (or similar state or local laws
prohibiting discrimination because of race, sex, religion,
national origin, age and the like); (ii) the Fair Labor
Standards Act or other federal, state or local laws
regulating hours of work, wages, overtime and other working
conditions; (iii) state laws with respect to tortious
employment conduct, such as slander, false light, invasion of
privacy, negligent hiring or retention, intentional
infliction of emotional distress, assault and battery, or
loss of consortium; (iv) the Occupational Safety and Health
Act, as amended, as well as any similar state laws, or other
regulations respecting safety in the workplace, or (v) state
workers compensation statutes or other state laws relating to
employer's liability. To Seller's knowledge, no proceedings,
charges, or complaints are threatened under any such laws or
regulations and no facts or circumstances exist which would
give rise to any such proceedings, charges, complaints, or
claims. Seller is not subject to any settlement or consent
decree with any present or former employee, employee
representative or any government or governmental agency
relating to claims of discrimination or other claims in
respect to employment practices and policies, and no
governmental agency has issued a judgment, order, decree or
written finding with respect to the labor and employment
practices (including practices relating to discrimination) of
the Seller or any Partnership in which Seller is a partner.
With respect to each person employed by the Seller who
actually commenced such employment on or after November 6,
1986, the Seller (i) has not hired such person in violation
of the Immigration Reform and Control Act of 1986 and the
rules and regulations thereunder ("IRCA"), and (ii) has not
failed to comply with all record keeping and other regulatory
requirements under IRCA.
N. Except as disclosed herein Seller is not a party or to
Seller's knowledge subject to any of the following (whether
written or oral, express or implied):
(i) any employment contract or understanding (including any
understandings or obligations with respect to indemnification
or to severance or termination pay liabilities or fringe
benefits) with any present or former officer, director,
employee or consultant except Xxxxx XxXxxxxxxx and Xxxx
Xxxxxx. Seller agrees that in the event of a consummation of
this sale and upon Buyer being able to negotiate and confect
an employment agreement with Xxxxx XxXxxxxxxx and/or Secker,
then in such event Seller agrees to terminate its employment
and/or consulting agreement with Xxxxx XxXxxxxxxx and/or Xxxx
Xxxxxx effective as of the Closing Date and Seller shall not
place any restrictions on Xxxxx XxXxxxxxxx and/or Xxxx Xxxxxx
from becoming an employee and consultant of Buyer;
(ii) any plan, contract or understanding providing for any
bonus, pension, stock option or other stock based right,
deferred compensation, retirement payment, profit sharing or
similar arrangement with respect to any present or former
officer, director, employee or consultant;
(iii) any contract containing any covenant limiting the
ability of the Seller to compete in any line of business or
with any person, or which involves any restriction of the
geographical area in which, or method by which, the Seller
may carry on its business;
O. The Seller is presently insured, and during each of the past
three calendar years has been insured, with financially sound
and reputable insurance companies against such risks as
disclosed in Exhibit 7 which contains an accurate list of all
such insurance policies. To the best of Seller's knowledge
and belief it is not now liable, nor will it become liable,
for any retroactive premium adjustment in accordance with any
policy existing on the date of this Agreement or prior
thereto. To the best of Seller's knowledge and belief, all
policies are valid and enforceable and in full force and
effect. Seller has not received any notice of a premium
increase or cancellation with respect to any of its insurance
policies or bonds. Within the last three years, Seller has
not been refused any insurance coverage sought or applied
for, and there is no reason to believe that its existing
insurance coverage cannot be renewed as and when the same
will expire, upon terms and conditions as favorable as those
presently in effect.
P. The only "employee benefit plans" within the meaning of
Section 3(3) of the Employee Retirement Income Security Act
of 1974, as amended ("ERlSA"), with respect to which any
liability (whether or not funded) under ERISA or otherwise
exists or may be incurred by the Seller are those set forth
on Exhibit 8 (the "Plans"). No Plan is a "multi-employer
plan" within the meaning of Section 3(37) of ERISA or a
"multiple employer welfare arrangement" within the meaning of
Section 3(40) of ERISA.
Each Plan is and has been in all respects operated and
administered substantially in accordance with its provisions
and applicable law and regulations and, to the extent
applicable, each Plan is "qualified" within the meaning of
Section 401(a) of the Code, and each related trust is exempt
from taxation under Section 501(a) of the Code.
The present value of all benefits vested and all benefits
accrued under each Plan which is subject to Title IV of ERISA
did not, in each case, as of the last applicable annual
valuation date (as indicated on Exhibit 8), exceed the value
of the assets of the respective Plan allocable to such vested
or accrued benefits.
No Plan or any trust created thereunder nor any trustee,
fiduciary or administrator thereof has engaged in any
transaction that could subject such Plan or trust or any
trustee, fiduciary or administrator thereof or any party
dealing with any such Plan or trust, to any liability,
including, without limitation, liability pursuant to Section
409 of ERISA or to either a civil penalty assessed pursuant
to Section 502 of ERISA or a tax or penalty on prohibited
transactions imposed by Section 4975 of the Code.
The Pension Benefit Guaranty Corporation has not instituted
proceedings to terminate any Plan or any trust created
thereunder, nor have there been any "reportable events," as
that term is defined in Section 4043 of ERISA, with respect
to any Plan.
Full payment has been made or will be made, in accordance
with Section 404(a)(6) of the Code, of all amounts that the
Seller is required to pay under the terms of each of the
Plans as a contribution to the Plans as of the last day of
the most recent fiscal year of each of the Plans ended prior
to the date of this Agreement; full payment has been made, in
accordance with Section 412(m) of the Code, of all quarterly
contributions that the Seller is required to pay under each
Plan that is a defined benefit plan, as of the last day of
the most recent fiscal quarter of each such Plan prior to the
date of this Agreement; no Plan or any trust created
thereunder has incurred any "accumulated funding deficiency,"
as such term is defined in Section 302 of ERISA (whether or
not waived), since the effective date of ERISA.
The Seller has not offered to provide health insurance
coverage or benefits to any individual, or to the family
members of any individual, for any period extending beyond
the termination of the individual's employment, except to the
extent required by the health care continuation coverage
("COBRA") provisions in ERISA and the Code.
To the best of Seller's knowledge there are no pending or
threatened claims by or on behalf of any of the Plans by any
employee or beneficiary covered under any such Plan, or
otherwise involving any such Plan (other than routine claims
for benefits).
Since the effective date of ERISA, no liability under Title
IV of ERISA has been incurred by the Seller (other than
liability for premiums due to the Pension Benefit Guaranty
Corporation) which has not been satisfied in full.
Q. The Seller has obtained all permits, licenses and other
authorizations that are required by it in connection with the
operation of its business and ownership or leasing of its
properties (collectively, the "Subject Properties"), under
any applicable Environmental Law Requirement.
The Seller is in full compliance with all terms and
conditions of such permits, licenses and authorizations and
with all applicable Environmental Law Requirements.
There are no past or present events, conditions,
circumstances, activities or plans related in any manner to
the Seller or any of the properties owned or operated by the
Seller ("Subject Properties") that may, in any respect,
violate or prevent compliance or continued compliance with
any of the Environmental Law Requirements or give rise to any
Environmental Liability.
There is no civil, criminal or administrative action, suit,
demand, claim, order, judgment, hearing, notice or demand
letter, notice of violation, investigation or proceeding
pending or to Seller's knowledge threatened by any person
against the Seller, or any prior owner of any of the Subject
Properties and relating to any of the Subject Properties, and
relating in any way to any Environmental Law Requirement or
seeking to impose any Environmental Liability, except matters
disclosed on Exhibit 5.
For purposes of this subparagraph, the following terms have
the following meanings:
"Environmental Law Requirement" means any federal, state or
local court order or decree or current law or current
ordinance, rule or regulation, notice, plan or demand letter
relating to pollution or protection of the environment,
including those relating to emissions, discharges, releases
or threatened releases or pollutants, contaminants, chemicals
or industrial, toxic or hazardous substances or wastes into
the environment (including, without limitation, ambient air,
surface water, ground or land) or otherwise relating to the
manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling or pollutants
contaminants, chemicals, or industrial, toxic or hazardous
substances or wastes.
"Environmental Liability" means (a) any liability or
obligation arising under any Environmental Law Requirement,
or (b) any other liability or obligation under law or equity
(including, without limitation, any liability for personal
injury, property damage, fines, penalties or site
remediation) that results from or is based upon or related
to, the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling, or the
emission, discharge, release or threatened release into the
environment, of any pollutant, chemical, or industrial, toxic
or hazardous substance or waste.
The Seller has all permits, licenses, authorizations, orders
and approvals of, and has made all filings, applications and
registrations with, federal, state, local or foreign
governmental or regulatory bodies that are required in order
to permit it to own or lease its properties and assets and to
carry on its business as it's presently conducted. All such
permits, licenses, authorizations, orders and approvals are
in full force and effect, and no suspension, cancellation or
modification of any of them is threatened.
R. The statements contained in this agreement, and the Exhibits
hereto, and in any other written documents heretofore
executed or delivered by or on behalf of the Seller pursuant
to the terms of this Agreement are true and correct in all
material respects and do not omit any fact necessary to make
the statements contained therein, in light of the
circumstances under which they were made, not misleading.
S. Prior to the Closing Date, the Seller will carry on its
business in the ordinary course in substantially the manner
in which such business heretofore has been conducted
(including the maintenance of appropriate levels of insurance
and reserves) and will use reasonable efforts to preserve
intact its business organization, keep available the services
of its principal officers and key employees, and preserve its
relationships with customers, suppliers and other persons
having business dealings with it.
Nothwithstanding anything in this agreement to the contrary with
the exception of the requirements of section 3.01(B), in the event
Buyer closes the sale and purchase on the Closing Date, no breach of
any representation or warranty contained in this Article V or a
violation of any covenant, condition or obligation of Seller pursuant
to this agreement shall permit Buyer to setoff against or not pay any
installment due pursuant to the Notes. Buyer's sole and exclusive
remedy for any breach of Seller's representations and warranties herein
shall be the reduction of the Deferred Payment and/or such injunctive
and/or equitable relief as may be permitted by law. Buyer, at Buyer's
option and in its sole discretion, shall have the right to setoff
against the Deferred Payment any and/or all cost and/or claims and/or
damages arising out of and/or resulting from and/or related to a breach
of any of Seller's representation and warranties in this agreement,
including the purchase and sale agreement transferring the Assets.
VI. BUYER'S REPRESENTATIONS AND WARRANTIES
6.01 In order to induce Seller to enter into this Agreement and
to consummate the transactions contemplated hereby. Buyer represents
and warrants to Seller as follows:
A. Buyer is a limited liability company and duly organized and
validly existing under the laws of the State of Louisiana.
B. Buyer has full power and authority to execute and deliver
this Agreement and to perform all its obligations hereunder
and the execution, delivery and performance by Buyer of this
Agreement, including the Notes and the consummation of the
transactions contemplated herein have been duly authorized by
all action necessary on the part of Buyer. This Agreement
has been and the Notes, in the event the closing occurs,
shall be duly executed and delivered by Buyer and each shall
constitute the legal, valid and binding obligation of Buyer,
enforceable against Buyer in accordance with their respective
terms, except as may be limited by bankruptcy, insolvency, or
similar laws affecting the enforcement of creditors' rights
generally.
C. The execution and delivery by Buyer of this Agreement and in
the event of the closing of this agreement, the Notes, do not
and will not (1) violate or conflict with the Articles of
Organization or Operating Agreement of Buyer, (2) conflict
with or result in a breach, default, termination,
acceleration or forfeiture under any provision of any
material obligation, note, contract, agreement or instrument
to which Buyer is a party of by which Buyer is otherwise
bound or (3) violate any order, judgment, decree, compliance
agreement, statute, ordinance, rule or regulation applicable
to Buyer.
6.02 Subsequent to the confection of the closing, Buyer covenants
and agrees as follows:
A. Buyer shall provide Seller (or any assignee of Seller as
designated in writing by Seller) a quarterly financial
statement, including a balance sheet and a profit and loss
statement, which statement shall reflect the EBITDA for that
quarter. The aforesaid statements shall be mailed to Seller
or its assignee within 45 days from the close of each
calendar quarter. The statements shall be unaudited and
shall be prepared in accordance with generally accepted
accounting principals. The Seller or its assignee shall
agree that the financial statements provided shall be held in
strictest confidence and no copies and/or reproduction and/or
storage of same by electronic media shall be permitted
without the express written consent of Buyer. Seller (or any
subsequent assignee) acknowledges that the financial
information is proprietary to Buyer and constitutes Buyer's
trade secret and Seller (or any subsequent assignee) shall be
liable to Buyer for any claim and/or damage and/or loss
and/or irreparable harm suffered by Seller arising from
Seller's (or its assignee's) disclosure of such financial
statements. Seller (or any subsequent assignee) and/or its
accountants and/or its attorneys, upon not less than 48 hours
prior written notice to Buyer, shall be given access to all
such books and records as may be necessary to support and
verify the accuracy of the aforesaid financial statements.
Seller (or any subsequent assignee), at its own expense and
with the consent of Buyer, may copy any such books and/or
records and/or data supporting the aforesaid financial
statements with the expressed acknowledgment by Seller (or
any subsequent assignee) that all such documents shall also
be deemed the trade secrets and proprietary rights of Buyer
and that Seller (and any subsequent assignee) shall be liable
for any violation relative to the aforesaid trade secrets.
B. Buyer shall promptly provide Seller (or any subsequent
assignee) a copy or summary of any executed bona fide offer
to purchase Buyer and/or any executed bona fide offer to
purchase all or substantially all of the Assets and/or any
executed agreement and/or transaction which would require
Buyer to pay the Deferred Payment. (It is understood that
Seller would receive its Deferred Payment in accordance with
the payment terms in which Buyer is paid and that in the
event Buyer is not paid, Seller will not be entitled to
payment.) The receipt by Seller (or any subsequent assignee)
of any of the aforesaid offer(s) and/or agreement(s) shall be
held in strictest confidence by Seller (or any subsequent
assignee) and shall not be disclosed to any other party nor
shall any additional copies of same be made and/or copies of
such be stored on any electronic media. Upon receipt of any
offer or agreement, Seller (or any subsequent assignee)
agrees that it shall not permit the review of any such offer
or agreement or the dissemination of such to any person other
than a person within Seller's company who may need to know
the aforesaid information for management purposes. In
conjunction with a review for management purposes, Seller may
disclose the aforesaid information with its certified public
accountant or its attorney. Seller further agrees to be
subject to any and all confidentiality requirements which
Buyer may be obligated to under any such offer or agreement.
VII. CLOSING
7.01 Closing shall take place by the execution of a notarial act
by each party which act may be signed in two multiple original
counterparts. In the event the closing documents are signed in
counterparts, Seller and Buyer shall execute their respective
instruments on or before 5 p.m. on the Closing Date. The notary public
before whom the closing documents are signed shall transmit a full copy
of the executed documents to the other party by facsimile. One
multiple original of the executed document shall be sent by overnight
courier service to the other party. Upon the Buyer receiving the
multiple original set of all closing documents, the Buyer shall
transmit to the Seller the payment set forth in Section 2.02 by wire
transfer. All documents executed by both Seller and Buyer shall be
executed within the State of Louisiana. The Closing Date shall occur
on or before May 29, 1998, (except to the extent that an additional
time for closing may be allowed as provided in Section 4.02) or such
date as the parties may mutually agree upon. With the exception of
section 3.01 (B), if all of such conditions and contingencies to
Buyer's obligations have not been satisfied or waived in writing on or
before May 29, 1998, (or the expiration of any additional time allowed
for closing, as provided in Section 4.02), then either party may
(provided the non-fulfillment of the condition is not attributable to
its fault), without penalty, terminate this Agreement, whereupon each
party shall be relieved of all obligations hereunder.
For the purposes of this paragraph, if documents are transmitted
by facsimile they shall be transmitted to the Seller in care of Xxxxx
Xxxxxxxxx whose facsimile number is 000-000-0000 with original
documents being transmitted to Seller in care of Mr. Xxxxx Xxxxxxxxx at
0000 Xxxxx Xxxxxxxx Xxxx., Xxxxx 0000, Xxxxxxxx, Xxxxxxxxx 00000. As
to Buyer, documents shall be transmitted in care of Xx. X. X.
Xxxxxxxxx, Xx., by facsimile at 000-000-0000 with original documents
being transmitted in care of Xx. Xxxxxxx Xxxxxxxxx at 000 Xxxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxx 00000.
7.02 At the closing, Seller shall deliver to Buyer:
A. Bills of sale and such other instruments of conveyance,
transfer, assignment and further assurance, all in form and
substance reasonably satisfactory to Buyer and its counsel,
as shall be effective to vest in Buyer title to and ownership
of the Assets and as shall be necessary to consummate the
other transactions contemplated by this Agreement;
B. Complete and correct copies of resolutions of the board of
directors of Seller and minutes of meetings and/or unanimous
written consent of its shareholders, effecting authorization
and approval of this Agreement and the transactions
contemplated herein;
C. Such other deeds, endorsements, assignments or other
documents or instruments as Buyer reasonably may request to
vest in Buyer good and marketable title to the Assets and
otherwise to effect the transactions contemplated hereby,
including particularly the executed release of all security
interest(s) in the Assets;
D. The assignment to Buyer of its telephone number of 610-259-
2126 and telephone listings used in connection with the
Business in Pennsylvania only;
E. To the extent not previously delivered, the items required in
Section 3.01;
F. The assignment to Buyer of Seller's tradenames, and/or
Seller's logo, to the extent that such name and logo is not
a registered intellectual property xxxx as shown on Exhibit
3, including the name "Atlantic Petroleum Technologies of
Louisiana." Seller agrees to change its corporate name
prior to closing and to execute a letter addressed to the
Secretary of State of Louisiana authorizing Buyer's
registration of this name for any entity which may be used by
Buyer for the acquisition of the assets herein. Seller
agrees to take all such action as the Secretary of State of
Louisiana may require so that Buyer may use the aforesaid
name with the formation of any entity;
G. Seller shall execute any and all tax forms necessary to
reflect the agreement between the parties as to the
allocation of the purchase price among the assets being
acquired including without limitation Internal Revenue
Service form 8594.
7.03 Seller shall deliver possession of all Assets to Buyer on
the Closing Date in substantially the same condition as their condition
on the Execution Date, including copies of all data which is either
stored on hard disks or floppy disks or other electronic medium
including all records and information relating to accounts receivable.
All risks of loss of the Assets prior to the date possession is
actually delivered to Buyer shall be borne by Seller.
7.04 On the Closing Date, and contemporaneous with Seller's
delivery of the documents required under Section 7.02 and Seller's
delivery of physical possession of all Assets as required under Section
7.03, and provided that Seller has fully complied with all of the terms
and conditions of this Agreement and all conditions precedent to
Buyer's obligations have been fully and timely satisfied, then Buyer
shall pay to Seller the cash portion of the purchase price and execute
a security agreement and/or a UCC financing statement as to the
moveables being transferred to secure Buyer's obligation for the credit
portion of the purchase. Seller agrees to execute a termination
statement as to its security contemporaneously at the point in time
when the credit portion due Seller, if any, is satisfied under the
terms of this agreement.
7.05 Each Party shall bear its own attorney's fees in connection
with the closing. Seller shall pay, and shall hold harmless, defend
and indemnify Buyer against, all the costs incurred as a result of the
Seller's actions in connection with the transactions contemplated by
this Agreement, including any broker's fee and/or finder's fee incurred
in connection with the consummation of the transactions contemplated by
this Agreement, and any expenses of transferring the Assets to Buyer as
contemplated by this Agreement with the exception of Buyer's attorney's
fees, its cost of its due diligence and any sales tax associated with
the transfer of the titles of all motor vehicles.
VIII. ACCESS TO ASSETS PRIOR TO CLOSING
8.01 Seller, upon 24 hours written or verbal notice by Buyer's
agent to Seller, hereby grants to Buyer, its counsel, accountants and
representatives the right to enter upon the premises wherein the
Business is conducted during normal business hours prior to closing to
make inspection of the Assets, files, contracts, books, financial
records, equipment, computers, computer programs and any and all other
items and assets that relate to the Business. Seller shall assist
Buyer in gaining access to and inspecting any and all such items.
During this time, Buyer shall have access to Seller's employees for
consultations to educate Buyer regarding the working of the Business
and to ascertain facts needed to evaluate and inspect the Assets.
8.02 Buyer shall be permitted through and including
March 15, 1998, to conduct its due diligent review of the assets to be
acquired.
IX. CONDUCT OF BUSINESS PRIOR TO CLOSING
9.01 From the Execution Date until the Closing Date, unless Buyer
shall otherwise expressly agree in writing:
A. Seller shall, at its own expense, maintain and administer the
Assets in working condition so as to preserve their full
value and that of the Business.
B. Seller shall not sell, mortgage, pledge or transfer, or
permit the sale, mortgage, pledge or transfer of any the
Assets with the exception of its present loan agreements
relative to its accounts receivable. Provided that Sellers
shall not alter and/or amend and/or enter into any new loan
agreement and/or utilize its accounts receivable as
collateral and/or security for any other debt and/or
liability.
C. Seller shall not materially change the manner in which it is
conducting the Business and shall use its best efforts to
carry on the Business with its customers in the ordinary
course and in accordance with prior practice, and Seller
shall take all actions reasonably required to attempt to
preserve and protect the goodwill and value of the Business,
including all relationships with the customers of the
Business.
D. Seller will not surrender, amend, modify, terminate, or waive
or exercise any rights under, or take any similar action with
respect to, any contract without the prior consent of Buyer.
E. Seller will not make any purchase of assets or enter into any
contracts other than in the ordinary course of business.
F. Seller will not incur any liabilities other than in the
ordinary course of business.
G. Seller will neither solicit nor entertain any offers for the
acquisition of any of the Assets or otherwise for the
purchase of the Business or Seller's operations in the
Marketing Areas, until such time as this agreement has been
terminated.
X. OBLIGATIONS OF THE PARTIES AFTER CLOSING
10.01 Seller hereby grants to Buyer the right and authority to
negotiate with and make offers of employment to any employee of Seller;
provided, however, that Buyer shall have no obligation to hire any of
Seller's employees or to pay any salary, wages benefits, employment
taxes or other sums which might be due them or payable in respect of
their employment by Seller. In the event that Buyer elects to hire any
of Seller's employees, Seller will deliver to Buyer all employment
records and personnel files relating to the employees so hired (but
only with the consent of such employees) and will allow each such
employee to remain on Seller's group health insurance (to the extent
possible) for a period of up to sixty (60) days or until such insurance
is transferred to Buyer, with the cost of such insurance for such
employees after closing to be reimbursed by Buyer within five working
days after Buyer's receipt of an invoice therefor.
10.02 To the extent permissible, Seller shall assign to Buyer its
health insurance contract.
XI.ACCOUNTS RECEIVABLE
11.01 As part of this purchase, Buyer is acquiring all of
Seller's Accounts Receivable which are presently subject to two
security agreements. Buyer is not assuming Seller's obligation to
Ally, in whole and/or in part, and Seller shall retain the entirety of
the obligation and Seller shall cause Ally to remove and/or terminate
any and all security arrangement by which the Accounts Receivables are
subject. Buyer shall assume the obligation secured by the Accounts
Receivable in favor of Primary Systems, L.L.C.
XII. DEFAULT
12.01 In the event that one of the parties hereto is ready,
willing and able to perform on the Closing Date as required under this
Agreement and the other party fails or refuses to close, despite the
fact that all conditions to the obligations of the latter to close have
been satisfied, then the former party, at its option, and in addition
to exercising any other right or remedy to it, may obtain specific
performance of the obligations of the defaulting party hereunder. In
the event of litigation to enforce or interpret any provision of this
Agreement, the prevailing party shall be entitled to recover from the
other party all reasonable attorney's fees incurred in seeking such
enforcement or interpretation.
12.02 Provided nothwithstanding anything herein to the contrary,
so long as Seller is not in default, in the event prior to the Closing
Date Seller shall receive a bona fide third party offer providing a
greater present value price then that provided herein and one which
Seller accepts then in such event this agreement shall terminate upon
Seller paying to Buyer the full and true sum of ONE HUNDRED FIFTY
THOUSAND AND NO/100 DOLLARS($150,000.00 US) in ready and current money
within twenty-four hours of the acceptance of the other offer. The
failure to timely and fully pay Buyer shall preclude the termination of
this agreement and Seller shall be obligated in accordance with this
agreement.
In the event of any legal action by any such third party offeror
and/or any shareholder of Seller and/or derivative action by Seller
and/or the third party offeror arising out of and/or related to any
such third party offer in which Buyer is made a party because of
Seller's failure to terminate this agreement and/or because of Seller's
wrongful termination of this agreement and/or because of any breach of
fiduciary obligation on the part of Seller and/or any and/or all of its
directors, then in such event Seller shall pay Buyer all of its cost
and/or expense, including reasonable attorney's fees associated with
the dispute for both litigation and pre-litigation legal services.
XIII. SURVIVAL OF REPRESENTATIONS AND WARRANTIES:
INDEMNIFICATION
13.01 Survival of Representations. The representations and
warranties of the parties to this Agreement shall survive the execution
and delivery of this Agreement and the consummation of the transactions
provided for herein, notwithstanding any investigations made by any
party hereto and any actual or constructive knowledge which any party
may have regarding a breach of a representation or warranty by other
party.
13.02 Indemnification by Seller. Seller agrees to indemnify,
defend and hold Buyer, its successors in interest and their respective
officers, directors, agents, employees, members, attorneys and legal
representatives (each an "Indemnified Party") harmless from and against
any and all losses, liabilities, claims, demands, judgments, expenses
(including reasonable legal fees and expenses), cause of action or
suits which arise against any Indemnified Party in connection with:
(1) any breach by Seller of any representation, warranty, covenant or
agreement contained in the Agreement, (2) any breach by Seller of any
of its obligations hereunder, (3) any claim, liability or obligation of
Seller (whether or not disclosed to Buyer) that relates to the Business
or the Assets and arises out of or involves any transaction entered
into, any event or activity occurring or any condition or obligation of
Seller, whether arising before, at or after the Closing Date provided
that the origin of the act in question is on or prior to the Closing
Date. Seller shall not be obligated to indemnify or defend Buyer
against any claim, demand or suit which is asserted by a customer of
the Business and is first made against Buyer more than thirty-six (36)
months after the Closing Date. The foregoing indemnity shall be in
addition to any other rights which Buyer may have at law and/or
pursuant to this agreement and/or the documents executed at closing.
Buyer shall give Seller prompt notice of any such claims, demands,
suits or actions asserted against Buyer which might result in a loss to
Buyer. Seller shall, if requested by Buyer, assume the defense of such
claim, demand, suit or action with legal counsel of Seller's choice
(that is reasonably acceptable to Buyer) at Seller's own expense and
Seller may, even if not so requested, participate at Seller's own
expense in the defense of such suit. Buyer shall furnish to Seller any
reasonable cooperation requested in connection with Seller's defense
against such claims, demands, suits or actions; provided, however, that
a failure on the part of Buyer to perform the obligations set forth
herein will not affect Seller's obligations to indemnify Buyer
hereunder, except to the extent Seller is actually prejudiced by such
failure. Notwithstanding anything herein to the contrary, Seller's
obligation of indemnification and/or its duty to defend shall only
commence once the claim and/or suit relative to any of the provisions
herein shall exceed an estimated value and/or a demanded value of
$5,000.00 and Seller's obligation shall only be for such amounts in
excess of $5,000.00. This $5,000.00 figure shall be cumulative as to
all claims and/or suits and/or causes of action under this section.
XIV. GENERAL PROVISIONS
14.01 Receipt of Correspondence by Buyer. Seller hereby
authorizes and empowers Buyer on and after the Closing Date to receive
and open all mail and other communications addressed to Seller and
received by Buyer and to deal with the contents of such communications
in any proper manner if such communications relate to the Assets being
acquired hereunder, or to any other matter directly or indirectly
connected with the subject matter of this Agreement. Buyer shall
deliver to or hold for Seller all mail or other correspondence, the
contents of which do not relate to the Assets to be acquired hereunder.
14.02 Delivery of Correspondence by Seller. Seller will deliver
promptly to Buyer the original of any mail or other communication
received by Seller after the Closing Date pertaining to the assets
transferred.
14.03 Severability. In the event any provision of this Agreement
shall be deemed to be unlawful or illegal by a final decision of a
court of competent jurisdiction, then that provision shall be stricken
and the remaining provisions shall be binding upon the parties, unless
the moving cause of this Agreement shall thereby be negated, in which
case this Agreement shall be dissolved.
14.04 Time of the Essence. Time is of the essence in the
performance of this Agreement and every provision hereof.
14.05 Notices. Any notice, request, instrument or communication
required or permitted to be given, served or delivered to any of the
parties shall be deemed to have been given, served or delivered (a) on
the third business day after it is deposited in the United States mail,
registered or certified and with proper postage prepaid, or (b) on the
first business day after it is deposited with Airborne or any other
recognized overnight courier service with proper fees prepaid, or (c)
on the business day on which it is sent and received by facsimile, in
each case addressed,
if to Buyer, to:
Xx. Xxxxxxx XxXxxx
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
or if to Seller, to:
Xxxxx Xxxxxxxxx
Chief Executive Officer
0000 Xxxxx Xxxxxxxx Xxxx.
Xxxxx 0000
Xxxxxxxx, XX 00000
or to such other address the parties may from time to time designate by
notice to the other parties.
14.06 Choice of Law. The validity and interpretation of this
Agreement shall be governed by the internal laws of the State of
Louisiana, without reference to rules regarding conflicts of law.
14.07 Further Assurances. Seller agrees that it will at any time
and from time to time, at the request of Buyer, execute and deliver to
Buyer such instruments as are in Buyer's judgment necessary to vest in
Buyer full right, title and interest in or to any of the Assets.
Seller agrees to cooperate with Buyer, at Buyer's request both prior
and subsequent to the Closing Date, in notifying Seller's vendors,
suppliers, and customers that Buyer has acquired the Assets and will be
continuing the Business in lieu of Seller, and further to cooperate in
obtaining an orderly transition of such Business from Seller to Buyer.
Seller further agrees that it will provide reasonable assistance to
Buyer, including the services of its employees in connection with the
transfer of the Assets from Seller to Buyer.
14.08 Miscellaneous. The Agreement and its exhibits set forth
the entire understanding among the parties hereto and supersedes all
prior agreements, arrangements and communications, whether oral or
written. Without limitation of the foregoing, this Agreement and its
exhibits expressly supersede all terms and provisions of that certain
letter of intent from Seller to Buyer dated November 10, 1997. This
Agreement shall not be modified, amended or terminated except by
written agreement of the parties. Captions appearing in this Agreement
are for convenience only and shall not be deemed to explain, limit or
amplify the provisions hereof. This Agreement may be executed in one
or more counterparts, each of which shall be deemed to be an original
instrument, and all such counterparts shall together constitute the
same agreement. The terms and conditions of this Agreement shall inure
to the benefit of and be binding upon the parties hereto and their
respective heirs, representatives, successors and assigns. Buyer may,
without the consent of Seller, assign and transfer its rights hereunder
and following any such assignment each reference herein to "Buyer"
shall be deemed to refer to such assignee; provided Buyer shall remain
liable for the purchase price to Seller.
14.09 No Third Party Beneficiary. The parties expressly do not
intend that any of the provisions hereof shall inure to the benefit of,
or be enforceable by, any third person; provided notwithstanding
anything herein to the contrary Seller acknowledges that Buyer may form
a new entity or assign this agreement to another entity for its
business purpose. Any such assignment of this agreement by Buyer shall
be permissible without the prior consent of Seller who agrees to bound
to by this agreement with any subsequent assignee. However, nothing
herein shall permit Buyer to assign its rights hereunder to any other
party.
14.10 No assumption of Seller's Obligations. The parties
expressly agree that Buyer does not assume, bind itself for or agree to
pay any obligation incurred by Seller or its agents, whether before of
after closing, except that Buyer agrees to be responsible for the
prospective observance after the Closing Date of (but not for any
previous transaction under or any sum, loss or damage due or to become
due as a result of any previous transaction under) the agreements,
stipulations and conditions agreed to by Seller in the written
agreements attached hereto in global as Exhibit 7.
14.11 Confidentiality. Each party agrees and undertakes to keep
strictly confidential in all respects the terms of this Agreement, the
letter of intent, the discussions of the parties pertinent hereto or
thereto, the negotiations of the parties and all actions contemplated
by this Agreement, except for disclosures to the attorneys,
accountants, and other advisors of the parties, Seller's creditors,
Buyer's creditors, and those persons who have acquired, or are
considering acquiring, an interest in Buyer.
14.12. Independent Investigation. Buyer acknowledges that it is
a sophisticated investor which has independently investigated the
merits of acquiring the aforesaid assets, however based upon the
representation and warranties provided herein by Seller.
SELLER SHALL HAVE UNTIL 5 P.M. C.S.T. ON APRIL 24, 1998 IN WHICH
TO EXECUTE THIS AGREEMENT. SELLER MAY ACKNOWLEDGE ITS ACCEPTANCE OF
THIS AGREEMENT BY SENDING THE EXECUTED AGREEMENT BY FACSIMILE ON OR
BEFORE THE AFORESAID DATE AND TIME TO 000-000-0000. THE RECEIPT OF THE
FACSIMILE SHALL BE BINDING AMONG THE PARTIES PROVIDED THE ORIGINALLY
EXECUTED AGREEMENT IS RECEIVED BY BUYER WITHIN TWENTY-FOUR HOURS OF THE
TRANSMISSION TIME OF THE FACSIMILE OF THIS AGREEMENT.
IN WITNESS WHEREOF, Seller has executed this Agreement on this
24th day of April, 1998.
WITNESSES ATLANTIC PETROLEUM
TECHNOLOGIES OF
LOUISIANA, INC.
By:
Xxxxx Xxxxxxxxx,
Chief Executive Officer
IN WITNESS WHEREOF, Buyer has executed this Agreement on the 24th
day of April, 1998.
WITNESSES: APTL, L.L.C.
By:
Xxxxxxx XxXxxx
Authorized Agent
EXHIBIT 1
ASSET PURCHASE AGREEMENT
BETWEEN
ATLANTIC PETROLEUM TECHNOLOGIES OF LOUISIANA, INC.
AND
APTL, L.L.C.
N O N E
EXHIBIT 2
ASSET PURCHASE AGREEMENT
BETWEEN
ATLANTIC PETROLEUM TECHNOLOGIES OF LOUISIANA, INC.
AND
APTL, L.L.C.
Asset Value
2 AINLAY Tank Testing Kits $ 3,250.00
Conference room table & 8 chairs 1,250.00
2 Furnished Offices 1,000.00
1 L-Shaped Desk Dark Rose 450.00
1 Cube Table Dark Rose 450.00
1 - 2 Drawer Filing Cabinet 50.00
1 Credenza 250.00
4 Green Chairs 400.00
1 Black Leather Chair High Back 100.00
1 Desk Dark Rose 450.00
1 Credenza Tan 250.00
1 Desk Tan 450.00
1 Xxxxx Leather Chair High Back 100.00
2 Xxxxx Chairs 200.00
2 White Desks 900.00
1 Xxxxx Desk 450.00
X. X. Xxxxxxx-2 Air Conditioner 666.00
1 Zenith 13" TV/VCR 250.00
1 Video Camera 500.00
1 Kodak Slide Projector 300.00
1 Power Spec Computer & Monitor 900.00
1992 Ford Truck, VIN 0XXXX00X0XXX00000 1,600.00
1991 Ford Truck, VIN 1FTE25N8MNA06156 5,500.00
1988 Ford Truck, VIN 0XXXX00X0XXX00000 5,000.00
1992 Ford Truck, VIN 0XXXX00X0XXX00000 3,000.00
1988 Chevrolet Truck, VIN 0XXXX00X0X0000000 5,500.00
1998 Chevrolet Truck, VIN 0XXXX00XXXX000000 20,233.30
EXHIBIT 3
ASSET PURCHASE AGREEMENT
BETWEEN
ATLANTIC PETROLEUM TECHNOLOGIES OF LOUISIANA, INC.
AND
APTL, L.L.C.
N O N E
EXHIBIT 4
ASSET PURCHASE AGREEMENT
BETWEEN
ATLANTIC PETROLEUM TECHNOLOGIES OF LOUISIANA, INC.
AND
APTL, L.L.C.
That certain vehicle lease
EXHIBIT 5
ASSET PURCHASE AGREEMENT
BETWEEN
ATLANTIC PETROLEUM TECHNOLOGIES OF LOUISIANA, INC.
AND
APTL, L.L.C.
1. That certain loan agreement between Primary Systems, L.L.C.,
and Atlantic Petroleum Technologies of Louisiana, Inc., dated November
10, 1997, related Security Agreement and Intercreditor Agreement with
Ally Capital Corporation.
2. That certain promissory note dated January 29, 1998, by and
between Primary Systems, L.L.C. and Atlantic Petroleum Technologies of
Louisiana, Inc., and related Security Agreement.
EXHIBIT A
PROMISSORY NOTE
New Orleans, Louisiana
May , 1998 $30,000.00
FOR VALUE RECEIVED, the undersigned promises to pay to the order
of Atlantic Petroleum Technologies of Louisiana, Inc., 0000 Xxxxx
Xxxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxxxxxxx 70002, or at such other place
or places as the holder or holders hereof shall designate in writing,
the principal sum of THIRTY THOUSAND AND NO/100 DOLLARS ($30,000.00),
without interest, except in the event of default and than at the rate
of eight percent (8%) per annum from date until paid, on August ,
1998.
The maker of this note and any and all endorsers, guarantors and
sureties hereby severally waive presentment for payment, demand, notice
of nonpayment, protest and all pleas of division and discussion, and
agree that this note may be extended one or more times without notice,
at the option of the holder, without affecting the liability of any of
the parties hereto.
Maker shall be liable for the obligation of this note and in the
event of death, insolvency, act of bankruptcy, or any bankruptcy
proceedings by or against, application for a respite or receivership,
by or against maker, then this note shall immediately mature and be
exigible, at the option of the holder hereof, without notice or demand,
and any agreement or extension notwithstanding.
In the event it becomes necessary to place this note in the hands
of an attorney for collection and/or for the institution of a law suit
maker agrees to pay the greater of $1,000.00 or fifteen percent (15%)
of the outstanding balance of the amount of this note as attorney's
fees.
The maker, endorsers, guarantors and sureties shall have the right
to prepay this note at any time without penalty.
APTL, L.L.C.
By:
EXHIBIT X-0
XXXXXXXXXX XXXX
Xxx Xxxxxxx, Xxxxxxxxx
Xxx , 0000 $50,000.00
FOR VALUE RECEIVED, the undersigned promises to pay to the order
of Atlantic Petroleum Technologies of Louisiana, Inc., 0000 Xxxxx
Xxxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxxxxxxx 70002, or at such other place
or places as the holder or holders hereof shall designate in writing,
the principal sum of FIFTY THOUSAND AND NO/100 DOLLARS ($50,000.00),
without interest, except in the event of default and than at the rate
of eight percent (8%) per annum from date until paid, on May , 1999.
The maker of this note and any and all endorsers, guarantors and
sureties hereby severally waive presentment for payment, demand, notice
of nonpayment, protest and all pleas of division and discussion, and
agree that this note may be extended one or more times without notice,
at the option of the holder, without affecting the liability of any of
the parties hereto.
Maker shall be liable for the obligation of this note and in the
event of death, insolvency, act of bankruptcy, or any bankruptcy
proceedings by or against, application for a respite or receivership,
by or against maker, then this note shall immediately mature and be
exigible, at the option of the holder hereof, without notice or demand,
and any agreement or extension notwithstanding.
In the event it becomes necessary to place this note in the hands
of an attorney for collection and/or for the institution of a law suit
maker agrees to pay the greater of $1,000.00 or fifteen percent (15%)
of the outstanding balance of the amount of this note as attorney's
fees.
The maker, endorsers, guarantors and sureties shall have the right
to prepay this note at any time without penalty.
APTL, L.L.C.
By:
EXHIBIT B
Irrevocable Straight Standby Letter of Credit No.
Atlantic Petroleum Technologies of La., Inc.
(Address)
Dear Sirs/Madame:
We hereby irrevocable authorize you to draw on Whitney National
Bank, New Orleans, La., not exceeding in the aggregate U.S. $
(Amount of L/C in figures and words), available by your draft(s) at
Sight for account of APTL, L.L.C.(Address).
Draft(s) must be presented at our office in New Orleans on or
prior to (Date of Expiration of L/C) and must bear upon the face, the
clause "Drawn under Whitney National Bank, New Orleans, La., Letter of
Credit No. dated ."
Draft(s) must be accompanies by this original Letter of Credit and
the following document(s):
1.) Beneficiary's statement purportedly signed by an officer of
Atlantic Petroleum Technologies of La., Inc. reading: "We
hereby certify that the amount drawn is due us by APTL,
L.L.C. who has defaulted in the payment of a certain
promissory note dated payable to the order of
ourselves."
2.) The promissory note must accompany this statement.
We hereby agree with you that all draft(s) drawn under and in
compliance with the terms of the Letter of Credit will be duly honored
on delivery of documents as specified if presented on or before the
date mentioned above at the office of Whitney National Bank at 000 Xx.
Xxxxxxx Xxx., Xxx Xxxxxxx, Xxxxxxxxx 00000, Attn: Letter of Credit
Section.
This credit is subject to the Uniform Customs and Practice for
Documentary Credits International Chamber of Commerce Publication
currently in force on the date of issuance.
CONFIDENTIALITY, NON-COMPETITION AGREEMENT AND
TERMS AND CONDITIONS OF EMPLOYMENT
This agreement entered into this day of , 1998, by and
between APTL, L.L.C., a Louisiana limited liability company with its
registered offices in Xxxxxxxxx Xxxxxx, Louisiana (hereinafter referred
to as "Employer" and Xxxxxxxx X. XxXxxxxxxx a person of full age and
majority and a resident and domiciliary of
(hereinafter referred to as "Employee").
WHEREAS Employer is in the business of providing construction and
environmental services, which includes the removal of underground
storage tanks and/or the construction and renovation of service
stations and mechanical contracting; and
WHEREAS Employer desires to hire Employee to perform certain work
and/or labors for Employer,
NOW THEREFORE in consideration of the aforesaid and the benefits
to be derived among the parties, they agree as follows:
1. TERM OF EMPLOYMENT.
Subject to the consummation of that certain Asset and Purchase
Agreement by and between Atlantic Petroleum Technologies of Louisiana,
Inc. ("APTL, Inc.") and APTL L.L.C., the subsequent passing of an act
of sale contemplated therein on the Closing Date, as that term is
defined in the aforesaid agreement, and the termination of Employee's
present contract with APTL, Inc. and the termination of any and/or all
present covenants not to compete and/or confidentiality agreements with
APTL, Inc. and further subject to the terms and conditions of this
agreement, Employer hereby hires Employee for the position of President
of Employer. Employee's employment shall commence on the day of
, 1998 and terminate on the day of , 2001.
Notwithstanding anything to the contrary herein, Employee acknowledges
that Employee may be discharged as provided in paragraph 5 and Employee
shall have the right to terminate his employment at any time.
2. DUTIES OF EMPLOYEE.
During the term of employment, Employee shall perform all such
duties as are typical to that of a president of a corporation, subject
to such limitation and/or specific requirements designated by the
Members of Employer. Provided, further, notwithstanding anything herein
to the contrary, Employee shall perform all such other duties as
Members of Employer, from time to time, may find necessary for the
benefit of Employer's business although such work might fall outside
the normal scope of Employee's work classification.
Employee shall devote his full time and efforts to the benefit of
Employer in accomplishing his work obligations. Employee shall engage
in no other occupation or work whatsoever during the time period
required by Employer for Employee's work to be done. Further Employee
shall at all times utilize his best efforts to see that his work is
done effectively and in accordance with all applicable policies and
procedures of Employer and in a lawful manner. Employee shall utilize
his best efforts to conduct himself and perform his work to avoid
accident and/or injury to himself and/or to any other fellow employee
and/or third party. Employee shall comply with all personnel policies
of Employer including without limitation those applicable to sexual
harassment.
Employee acknowledges that by accepting employment with Employer
that Employee owes Employer a duty of loyalty and fidelity. Employee
acknowledges that he may obtain access to specific knowledge and
information about Employer's business which is confidential and/or
which may constitute trade secrets. At all times hereinafter, Employee
covenants and agrees to hold in confidence any and/or all trade secrets
and/or such other information as may be determined to be the
confidential information of Employer. Employee agrees not to use same
for any purpose not necessary for the accomplishment of any task under
this employment agreement and/or to disclose same to anyone including
without limitation other fellow employees whom Employee has no
knowledge of whether such other employee has a right to such
information and/or to disclose same to any other third party without
the prior written consent of Employer. Employee acknowledges that any
and all designs, data, blueprints, and/or procedures developed and/or
arising out of and/or related to and/or resulting from Employee's
business shall be deemed to be proprietary rights of Employer. Any
process and/or procedure and/or creation of any xxxx and/or computer
and/or computer software and/or invention which may be patentable
and/or copyrightable shall be deemed to have been a work for hire on
behalf of the Employer and to the extent necessary Employee agrees to
execute any and all such writings as may be necessary to effectuate the
ownership of any such patent and/or copyright and/or marketable xxxx in
the name of Employer. It is specifically understood and agreed that
Employee shall not be entitled to any royalty or any other additional
remuneration for the creation of any of the aforesaid and that
Employee's sole compensation for any and all such work shall be this
agreement and the salary paid to Employee.
3. COMPENSATION.
3.1 Employee shall receive a salary from Employer of SEVEN
THOUSAND EIGHTY THREE AND 33/100 ($7,083.33) per month, payable semi-
monthly less all applicable taxes and/or deductions for benefits.
Employee shall receive a four percent (4%) membership interest in
Employer after completing one full month of employment which interest
shall be subject to complete forfeiture to Employer in the event
Employee breaches any terms of this agreement. In the event Employee
is entitled to receive the membership interest before he shall receive
same he shall execute an amendment to the Operating Agreement of
Employer and agree to be bound by its terms and those of the Articles
of Organization of Employer provided the execution of any amendment to
the Operating Agreement shall not negate the aforesaid forfeiture
provision.
3.2 Employee shall be eligible to participate in
Employer's/Employee's cost shared insurance program insurance program
which includes life insurance, medical insurance and disability
insurance commencing on the first month following the first sixty days
from Employee's commencement of his employment. Medical insurance may
be obtained which will provide coverage for your spouse and children
subject to the restrictions provided by the Employer's insurer.
Employee acknowledges receipt of Employer's benefit program and the
present cost associated with same.
3.3 Provided Employee is not in default under this agreement
and Employee is an employee of Employer on the 15th day following
Employee's first full 15 calendar months of employment under this
agreement, Employee shall be paid a cash bonus of four percent (4%) of
Employer's EBITDA (EBITDA means Earnings Before Deductions for
Interest, Taxes, Depreciation and/or Amortization) provided that the
EBITDA is in excess of FOUR HUNDRED THOUSAND AND 00/100 DOLLARS
($400,000.00) for the time period from the beginning of the first full
month in which the Employee is employed through the last day of the
15th full calendar month. (Earnings shall be computed as determined
under the accounting methodology utilized by Employer for keeping its
financial records which methodology shall be in accordance with
generally accepted accounting principles provided that in the
calculation of earnings for EBITDA all consulting and/or management
fees paid to Primary Systems, L.L.C. shall not exceed $2500.00 per
month.) The cash bonus shall be paid Employee with Employee's next pay
check following the determination that the bonus is due, less all
applicable payroll taxes. Should Employee have full time management
over any acquisition(s) made by Employer during the aforesaid time
period the calculation of EBITDA shall include the EBITDA associated
with such acquisition(s).
Provided further, that for each full calendar year after the first
such full calendar year during the term of this agreement, for which
Employee is not in default of this agreement, Employee shall be
entitled to the same cash bonus under the same conditions as provided
in the paragraph above except that the payment of any such cash bonus
shall be payable to Employee within forty-five days from the end of the
applicable full calendar year period. (A full calendar year period is
the time period from January 1 through December 31 of each year.)
3.4.1 Provided notwithstanding anything in this agreement to
the contrary to the extent Employee receives membership interest in
Employer upon Employee's cessation of employment, for any reason, with
Employer Employee shall be obligated to sell to Employer all of
Employee's membership interest to Employer. The sale to Employer shall
be in accordance with the Operating Agreement of Employer with the
exception that the purchase price shall be payable in three equal
annual installments of principal and interest with the first payment
commencing twelve months from the confection of the sale. This
provision shall survive the termination of this contract and shall be
binding upon the Employee's heirs, successors and/or assigns and this
limitation shall be reflected on the membership certificate of Employee
and any subsequent transfer.
3.5 Employee shall be further entitled to participate in the
"Management Team" bonus. (The term "Management Team" refers to
Xxxxxxxx XxXxxxxxxx, Xxxxxxx XxXxxxxxxx and Xxxx Xxxxxx.)
3.5.1 The Management Team bonus shall be determined as
follows:
a. In the event the gross revenues of Employer for the first
full 15 calendar month after employment begins is greater than or equal
to $3,000,000.00 and the EBITDA for that same period is greater than or
equal to $400,000.00, then in such event the Management Team Bonus
shall be a two percent membership interest in Employer for each full
$100,000.00 of EBITDA reflected for the aforesaid 15 month period but
not to exceed a maximum amount of a 16 percent membership interest.
This Management Team bonus is to be apportioned among the Management
Team in the amounts of one-half of the Management Team bonus to Xxxxx
XxXxxxxxxx and one-fourth of the Management Team bonus each to Xxxx
Xxxxxx and Xxxxxxx XxXxxxxxxx. The management team bonus due to Xxxx
Xxxxxx and Xxxxxxx XxXxxxxxxx shall be reduced by the one percent (1%)
membership interest granted after one full month of employment as
described in paragraph 3.1. (Accordingly, the maximum amount of
interest which Xxxxxxxx XxXxxxxxxx could earn would be eight percent
with the maximum amount for each of the other team members would be
three percent. Provided that the reduction in the number of employees
in the Management Team shall not increase the Team bonus paid to
Employee but same shall be computed as if the Management Team consisted
of all of the aforesaid members.) Provided further that the Management
Team bonus shall only be paid in the event the Employee is employed
with Employer on the 15th day following the aforesaid 15 month period.
In the event any of the Management Team is not so employed on the
aforesaid date on which the Management Team bonus is to be paid, then
in such event the remaining Management Team individuals shall share
ratably the interest of the non-employed Management Team member(s).
Provided further Employee shall not be entitled to the Management Team
bonus in the event Employee is discharged for cause as provided for in
paragraph 5.1 on or before the date on which the Management Team bonus
is to be paid or Employee gives notice of his intent to voluntarily
terminate his employment on or before the date on which the Management
Team bonus is to be paid or Employee gives such notice within 30 days
after the date on which the team bonus is to be paid.
b. Provided not withstanding anything herein to the contrary, in
event of a dispute between Employer and Employee regarding Employee's
right to be paid his share of the Management Team bonus and/or a
dispute exists with any other member of the Management Team as to his
right to be paid his portion of the Management Team bonus, then in such
event, distribution of the disputed Management Team bonus shall be
deferred pending a final decision by arbitration and/or a final
nonappealable decision of a court of competent jurisdiction. Employer
shall not be liable for any past dividends and/or loss in value in the
disputed Management Team bonus caused by the delay while the dispute is
being arbitrated and/or litigated nor shall Employer be obligated to
pay for any such past due dividends and/or loss in value once the
dispute is resolved. Nor shall Employer be liable to Employee for any
action which Employer undertook and/or refrained from taking in the
exercise by Employer in voting that portion of the Management Team
bonus in dispute. It is specifically agreed among the parties hereto
that no ownership interest in any and/or all of the disputed Management
Team bonus shall vest in Employee until such time as such dispute is
resolved either with Employee and/or any and/or all other members of
the Management Team.
3.6 During the term of this agreement Employer shall provide
Employee with a motor vehicle, of a kind which Employer deems
appropriate, for business purposes. Employer shall pay for all
gasoline, maintenance, insurance, licenses and/or repairs for the
vehicle. Employee shall not use the vehicle in any fashion which would
negate and/or violate and/or reduce the insurance coverage on the
vehicle.
Provided that in the event Employee declines a company car,
Employer shall pay Employee a monthly automobile allowance of $450.00
and reimburse Employee for gasoline use for Employer's business.
3.7 Employer shall reimburse Employee for all reasonable
expenses incurred by Employee for fulfilling Employee's duties.
Employer shall establish an expense account as it deems necessary for
Employee to conduct the business of Employer. Employer may provide
Employee with a company credit card. Any and all charges for which
reimbursement is sought and/or which is charged on any company provided
credit card shall be documented by Employee with appropriate receipts
and a statement of the business purpose for the expenditure. Employer
reserves the right to terminate Employee's use of any credit card
and/or to refuse to reimburse Employee for any expense which is not
sufficiently documented so that Employer can properly expense same on
its books. Employer further shall have the right to setoff against any
sums owed to Employee any improper, illegal or unsubstantiated expense,
irrespective if Employer has already paid same.
3.8 Employee shall earn 15 days of vacation time per
calendar year ratably with each pay period. Employee shall be entitle
to utilize such vacation time after it has accrued by giving Employer
30 days prior notice of his intent to utilize the vacation time and the
amount of time intended to be used. Authorization to utilize the time
specified by Employee shall be subject to Employer's needs and
obligations as to Employer's business. No unused vacation time shall
be carried forward for any subsequent year nor will Employee be
entitled to compensation for any unused vacation time except in the
event Employer is in need of the services of Employee which would
preclude the utilization of Employee's vacation time. Under the
aforesaid conditions vacation time would accrue and be carried forward
to the next calendar year. However, the failure to utilize the
vacation time in the next calendar year would result in the forfeiture
of the unused time.
4. NON-COMPETE AGREEMENT AND CUSTOMER SOLICITATION.
In consideration of this agreement, Employee specifically agrees
that Employee shall not carry on or engage in any business similar to
that of Employer and/or solicit customers of Employer within the
specific parishes or municipalities reflected on Exhibit A, which is
attached hereto and made a part hereof, so long as Employer carries on
a like business therein during Employee's employment with Employer and
for a period of two years from the termination of this employment
agreement.
Provided notwithstanding anything herein to the contrary, this
non-competition agreement shall not preclude Employee from becoming an
employee of another employer, the business of such employer which may
be in competition with Employer herein provided at no time does
Employee have any equity interest in the business of the new employee,
whether directly and/or indirectly. However, Employee specifically
acknowledges that Employee shall have no right to make use for the
benefit of any such other employer any and all trade secrets and/or
confidential information which Employee may have had access to and/or
have knowledge of as a result of his employment with Employer.
For the purposes of this paragraph 4, the term "business similar
to that of Employer" is defined as the renovation and/or construction
relative to the removal and/or the installation of gasoline storage
tanks including the installation of new gasoline pumps, pump
mechanisms, underground storage tanks, canopies covering all and/or a
portion of the pump area and all related cement work and/or related
site work. It is acknowledged by the parties hereto that the Employer
may begin doing business in other parishes and/or municipalities during
the term of this agreement or may cease doing business in certain
parishes and/or municipalities during the term of this agreement. To
properly reflect the geographical areas of non-competition, Employee
agrees to execute such amendment(s) as may be necessary, from time to
time, during the term of this employment agreement to correctly reflect
the geographical limitations of this non-competition provision.
(Employee further agrees that this non-competition agreement shall
prohibit Employee from engaging in any work or activity to design,
write, modify, or implement any computer program that directly competes
with any confidential computer program owned and/or licensed and/or
marketed by Employer and to which Employee had direct access during the
term of his employment. The term "computer program" shall mean a plan,
routine or set of statements or instructions, including any subset,
subroutine, or portions of instructions, regardless of format or medium
which are capable when incorporated into a machine-reading medium of
causing a computer to perform a particular function or achieve a
particular result.)
Employee further acknowledges that to the extent Employer is
covered by the Economic Espionage Act that it would be a federal
criminal offense for any person, including Employee, to convert a trade
secret to his or her own benefit or the benefit of others intending or
knowing that the offense will injure any owner of the trade secret.
5. TERMINATION.
5.1 This agreement may be terminated for cause as follows:
5.1.1 at the election of Employer upon Employee's breach
of any material provision of this agreement;
5.1.2 at the election of Employee upon the Employer's
breach of any material provision of this agreement;
5.1.3 upon the death of Employee;
5.1.4 at the election of either party upon the total
disability of Employee to perform his normal duties ninety (90) days of
more during this agreement; provided, however, that if Employee elect
to terminate, such termination will be effective ten (10) days after
the Employer's written notice to Employee;
5.1.5 at the election of Employer upon the conviction of
Employee or upon Employee entering a plea of guilty or nolo contendere
to the alleged commission by Employee, as principal, accomplice or
accessory, of a felony crime involving moral turpitude or an act of
fraud embezzlement or dishonesty;
5.1.6 at the election of Employer upon Employee's gross
negligence, willful misconduct or refusal to substantially perform the
responsibilities hereunder during the course of employment; or
5.1.7 at the election of Employer upon the unauthorized
willful disclosure of any trade secret or confidential information of
Employer or the commission of an intentional act which constitutes a
breach of Employee's noncompetition obligations to Employer.
In the event that Employer or Employee elects to terminate this
agreement because of a breach of any material provision hereof pursuant
to paragraph 5.1.1. or 5.1.2, the party electing to terminate this
agreement shall give at least five days written notice to the other
party of its intention to terminate this agreement which notice shall
specify the breach of this agreement upon which such termination is
based and no such termination shall occur if the other party cures the
breach so specified within said five day period except that a party
shall only have the opportunity to cure a breach of a material
provision on tow occasions and thereafter that party need not be given
the opportunity to cure any further material breaches.
All obligation of Employer or the Employee under this agreement
shall immediately cease upon termination of this agreement by Employer
or Employee for cause except as to those provided in paragraph 4 which
shall survive such termination.
5.2 In accordance with Employee's existing and continuing
obligations to Employer, Employee agrees to return to Employer upon
termination all of Employer's property and/or copies thereof, including
without limitation all files, records, computer access codes, credit
cards, computer programs, keys, card key passes, instruction manuals,
documents, business plans and other property which Employee received or
prepared or helped to prepare in connection with Employee's employment
with Employer and to assign to Employer all right, title and interest
in such property and any other inventions, discoveries or works of
authorship created by Employee within the scope and during the course
of Employee's employment.
6. ARBITRATION.
All claims and disputes related to this Agreement shall be subject
to arbitration at the option of either party in accordance with the
Labor Arbitration Rules of the American Arbitration Association.
Either party shall be entitled to notice the other party that it
intends to invoke the arbitration provisions of this paragraph, which
notice shall include a detailed description of the factual basis for a
claimed default including reference to the contractual provisions
hereof which apply to such default. A copy of such notice shall be
simultaneously forwarded to the American Arbitration Association, in
New Orleans, Louisiana, and/or the next closest office to New Orleans
in the event there is no office in New Orleans, Louisiana. Prior to
the arbitration hearing the parties shall be entitled to such discovery
as may then be provided by the Federal Rules of Civil Procedure in
preparation for the arbitration hearing. Said arbitration shall be
heard by a single arbitrator appointed by the American Arbitration
Association and the award rendered by said arbitrator shall be final
with judgment being entered upon it in accordance with the applicable
law of any court having jurisdiction thereof. The final judgment by
the arbitrator shall include written reasons as to the basis for the
award.
6.2 Notwithstanding the above, in the event that the claimed
default by Employee is based upon a claim that Employee has defaulted
with respect to the confidential obligation and/or the covenant not to
compete then in such event, Employer shall not be limited to a
resolution of such by the American Arbitration Association, but
Employer shall have access to any court of competent jurisdiction for
the purpose of seeking a temporary or permanent injunction and
proceeding thereafter with any other claim which Employer may have
against Employee, including without limitation monetary damages.
6.3 In the event of a dispute as to whether or not an issue is
subject to arbitration, then in such event this issue shall be
submitted to a court of competent jurisdiction for a final
determination of such.
7. GOVERNING LAW.
This Agreement shall be construed in accordance with the laws of
the State of Louisiana. The parties agree that a suit may be
instituted in any court within the State of Louisiana and/or any other
jurisdiction permitted by law, subject to the arbitrator provision.
8. SEVERABILITY.
If any provision or any part of any provision of this agreement is
found not to be valid for any reason by a final non-appealable decision
of an arbitrator and/or a court of competent jurisdiction, then such
provision shall be entirely severable from and shall have no effect
upon the remainder of this agreement unless the deletion of such
provision(s) shall go to the moving cause of this agreement.
IN WITNESS WHEREOF we have subscribed our names hereto on the date
first above written in the presence of the undersigned competent
witness after a reading of the whole.
APTL, L.L.C.
By:
Xxxxxxxx X. XxXxxxxxxx
Employee
EXHIBIT A
PROMISSORY NOTE
New Orleans, Louisiana
, 199 $ 0,000.00
FOR VALUE RECEIVED, the undersigned promises to pay to the order
of APTL, L.L.C., on demand, the principal sum of THOUSAND AND
NO/100 DOLLARS ($ 0,000.00), with interest thereon at the rate of seven
percent (7%) per annum from date until paid.
In the event of a default and if the holder of this note is APTL,
L.L.C. then APTL, L.L.C. shall have the right but not the obligation to
setoff the amount owed under this note against any payment due maker by
APTL, L.L.C. and maker by these presence authorizes any and all such
deductions from money owed to maker by APTL, L.L.C.
Maker shall be liable for the obligation of this note and in the
event of death, insolvency, act of bankruptcy, or any bankruptcy
proceedings by or against, application for a respite or receive, by or
against maker, then this note shall immediately mature and be exigible,
at the option of the holder hereof, any agreement or extension
notwithstanding.
In the event it becomes necessary to place this note in the hands
of an attorney for collection and/or for the institution of a law suit
maker agrees to pay the greater of $1,000.00 or ten percent (10%) of
the outstanding balance of the amount of this note as attorney's fees.
The maker, endorsers, guarantors and sureties shall have the right
to prepay this note at any time without penalty.
Xxxxxxxx X. XxXxxxxxxx
AGREEMENT
This agreement entered into this day of , 1998, by and
between APTL, L.L.C., a Louisiana limited liability company with its
registered offices in Xxxxxxxxx Xxxxxx, Louisiana (hereinafter referred
to as "APTL") and Xxxxxxxx XxXxxxxxxx a person of full age and majority
and a resident and domiciliary of
(hereinafter referred to as "LM").
WHEREAS, LM is an employee of APTL; and
WHEREAS, LM desires to make a loan from APTL for the purposes of
paying a tax liability to the Internal Revenue Service ("IRS") and/or
the Pennsylvania Department of Revenue ("PDR") resulting from LM's
position with Atlantic Petroleum Technologies, Inc. as to the trusted
portion of the aforesaid company's payroll taxes; and
WHEREAS, APTL is agreeable to making such a loan in an amount not
to exceed $30,000.00 under the following conditions:
1. In the event LM can satisfy the IRS and the PDR on the
aforesaid indebtedness in an amount not to exceed $30,000.00, then in
such event APTL agrees to loan to LM an amount not to exceed the lesser
of the amount owed to the IRS or $30,000.00.
2. Prior to making the loan LM shall provide APTL with all
documentation regarding the debt to the IRS and the PDR and all closing
agreements.
3. APTL agrees to fund the aforesaid loan within 10 days from LM
satisfying the aforesaid conditions of paragraph 2.
4. The aforesaid loan shall be unsecured and reflected by a
promissory note in the form and substance as that attached as Exhibit
A. The said note shall be payable on demand and bear interest at the
rate of 7% per annum until paid and subject to all of the other
conditions reflected on Exhibit A.
5. This agreement shall terminate upon the earlier of (i) LM's
cessation of employment with APTL or (ii) three years from the date of
this agreement or (iii) the release or the failure to pursue any tax
liability by the IRS and/or the PDR or (iv) the running of any statute
of limitation precluding enforceability of the collection of the
aforesaid tax.
IN WITNESS WHEREOF we have subscribed our names hereto on the date
first above written in the presence of the undersigned competent
witness after a reading of the whole.
APTL, L.L.C.
By:
Xxxxxxxx X. XxXxxxxxxx
CONFIDENTIALITY, NON-COMPETITION AGREEMENT AND
TERMS AND CONDITIONS OF EMPLOYMENT
This agreement entered into this day of , 1998, by and
between APTL, L.L.C., a Louisiana limited liability company with its
registered offices in Xxxxxxxxx Xxxxxx, Louisiana (hereinafter referred
to as "Employer" and Xxxx Xxxxxx a person of full age and majority and
a resident and domiciliary of County, Pennsylvania
(hereinafter referred to as "Employee").
WHEREAS Employer is in the business of providing construction and
environmental services, which includes the removal of underground
storage tanks and/or the construction and renovation of service
stations and mechanical contracting; and
WHEREAS Employer desires to hire Employee to perform certain work
and/or labors for Employer,
NOW THEREFORE in consideration of the aforesaid and the benefits
to be derived among the parties, they agree as follows:
1. TERM OF EMPLOYMENT.
Subject to the consummation of that certain Asset and Purchase
Agreement by and between Atlantic Petroleum Technologies of Louisiana,
Inc. ("APTL, Inc.") and APTL L.L.C., the subsequent passing of an act
of sale contemplated therein on the Closing Date, as that term is
defined in the aforesaid agreement, and the termination of Employee's
present contract with APTL, Inc. and the termination of any and/or all
present covenants not to compete and/or confidentiality agreements with
APTL, Inc. and subject to the terms and conditions of this agreement,
Employer hereby hires Employee for the position of Vice-President of
Employer. Employee's employment shall commence on the day of
, 1998 and terminate on the day of , 1999.
Notwithstanding anything to the contrary herein, Employee acknowledges
that Employee may be discharged as provided in paragraph 5 and Employee
shall have the right to terminate his employment at any time.
2. DUTIES OF EMPLOYEE.
During the term of employment, Employee shall perform all such
duties as are typical to that of a vice-president of a corporation,
subject to such limitation and/or specific requirements designated by
the Members of Employer. Provided, further, notwithstanding anything
herein to the contrary, Employee shall perform all such other duties as
Members ofEmployer, from time to time, may find necessary for the
benefit of Employer's business although such work might fall outside
the normal scope of Employee's work classification.
Employee shall devote his full time and efforts to the benefit of
Employer in accomplishing his work obligations. Employee shall engage
in no other occupation or work whatsoever during the time period
required by Employer for Employee's work to be done. Further Employee
shall at all times utilize his best efforts to see that his work is
done effectively and in accordance with all applicable policies and
procedures of Employer and in a lawful manner. Employee shall utilize
his best efforts to conduct himself and perform his work to avoid
accident and/or injury to himself and/or to any other fellow employee
and/or third party. Employee shall comply with all personnel policies
of Employer including without limitation those applicable to sexual
harassment.
Employee acknowledges that by accepting employment with Employer
that Employee owes Employer a duty of loyalty and fidelity. Employee
acknowledges that he may obtain access to specific knowledge and
information about Employer's business which is confidential and/or
which may constitute trade secrets. At all times hereinafter, Employee
covenants and agrees to hold in confidence any and/or all trade secrets
and/or such other information as may be determined to be the
confidential information of Employer. Employee agrees not to use same
for any purpose not necessary for the accomplishment of any task under
this employment agreement and/or to disclose same to anyone including
without limitation other fellow employees whom Employee has no
knowledge of whether such other employee has a right to such
information and/or to disclose same to any other third party without
the prior written consent of Employer. Employee acknowledges that any
and all designs, data, blueprints, and/or procedures developed and/or
arising out of and/or related to and/or resulting from Employee's
business shall be deemed to be proprietary rights of Employer. Any
process and/or procedure and/or creation of any xxxx and/or computer
and/or computer software and/or invention which may be patentable
and/or copyrightable shall be deemed to have been a work for hire on
behalf of the Employer and to the extent necessary Employee agrees to
execute any and all such writings as may be necessary to effectuate the
ownership of any such patent and/or copyright and/or marketable xxxx in
the name of Employer. It is specifically understood and agreed that
Employee shall not be entitled to any royalty or any other additional
remuneration for the creation of any of the aforesaid and that
Employee's sole compensation for any and all such work shall be this
agreement and the salary paid to Employee.
3. COMPENSATION.
3.1 Employee shall receive a salary from Employer of FOUR
THOUSAND FIVE HUNDRED EIGHTY THREE AND 33/100 ($4,583.33) per month,
payable semi-monthly less all applicable taxes and/or deductions for
benefits. Employee shall receive a one percent (1%) membership
interest in Employer after completing one full month of employment
which interest shall be subject to complete forfeiture to Employer in
the event Employee breaches any terms of this agreement. In the event
Employee is entitled to receive the membership interest before he shall
receive same he shall execute an amendment to the Operating Agreement
of Employer and agree to be bound by its terms and those of the
Articles of Organization of Employer provided the execution of any
amendment to the Operating Agreement shall not negate the aforesaid
forfeiture provision.
3.2 Employee shall be eligible to participate in
Employer's/Employee's cost shared insurance program insurance program
which includes life insurance, medical insurance and disability
insurance commencing on the first month following the first sixty days
from Employee's commencement of his employment. Medical insurance may
be obtained which will provide coverage for your spouse and children
subject to the restrictions provided by the Employer's insurer.
Employee acknowledges receipt of Employer's benefit program and the
present cost associated with same.
3.3 Provided Employee is not in default under this agreement
and Employee is an employee of Employer on the 15th day following
Employee's first full 15 calendar months of employment under this
agreement, Employee shall be paid a cash bonus of three percent (3%) of
EBITDA (EBITDA means Earnings Before Deductions for Interest, Taxes,
Depreciation and/or Amortization) provided that EBITDA is in excess of
FOUR HUNDRED THOUSAND AND 00/100 DOLLARS ($400,000.00) for the time
period from the beginning of the first full month in which the Employee
is employed through the last day of the 15th full calendar month.
(Earnings shall be computed as determined under the accounting
methodology utilized by Employer for keeping its financial records
which methodology shall be in accordance with generally accepted
accounting principles provided that in the calculation of earnings for
EBITDA all consulting and/or management fees paid to Primary Systems,
L.L.C. shall not exceed $2500.00 per month.) The cash bonus shall be
paid Employee with Employee's next pay check following the
determination that the bonus is due, less all applicable payroll taxes.
3.4 Employee shall be further entitled to participate in the
"Management Team" bonus. (The term "Management Team" refers to
Xxxxxxxx XxXxxxxxxx, Xxxxxxx XxXxxxxxxx and Xxxx Xxxxxx.)
3.4.1 The Management Team bonus shall be determined as
follows:
a. In the event the gross revenues for the first full 15
calendar month period is greater than or equal to $3,000,000.00 and the
EBITDA for that same period is greater than or equal to $400,000.00,
then in such event the Management Team bonus shall be a two percent
membership interest in Employer for each full $100,000.00 of EBITDA
reflected for the aforesaid 15 month period but not to exceed a maximum
amount of a 16 percent membership interest. This Management Team bonus
is to be apportioned among the Management Team in the amounts of one-
half of the Management Team bonus to Xxxxx XxXxxxxxxx and one-fourth of
the Management Team bonus each to Xxxx Xxxxxx and Xxxxxxx XxXxxxxxxx.
The management team bonus due to Xxxx Xxxxxx and Xxxxxxx XxXxxxxxxx
shall be reduced by the one percent (1%) membership interest granted
after one full month of employment as described in paragraph 3.a.
(Accordingly, the maximum amount of interest which Xxxxxxxx XxXxxxxxxx
could earn would be eight percent with the maximum amount for each of
the other team members would be three percent.) Provided further that
the Management Team bonus shall only be paid in the event the Employee
is employed with Employer on the 15th day following the aforesaid 15
month period. In the event any of the Management Team is not so
employed on the aforesaid date on which the Management Team bonus is to
be paid, then in such event the remaining Management Team individuals
shall share ratably the interest of the non-employed Management Team
member(s). Provided further Employee shall not be entitled to the
Management Team bonus in the event Employee is discharged for cause as
provided for in paragraph 5.1 on or before the date on the Management
Team bonus is to be paid or Employee gives notice of his intent to
voluntarily terminate his employment on or before the date on which the
Management Team bonus is to be paid or Employee gives such notice
within 30 days after the date on which the team bonus is to be paid.
b. Provided not withstanding anything herein to the contrary, in
event of a dispute between Employer and Employee regarding Employee's
right to be paid his share of the Management Team bonus and/or a
dispute exists with any other member of the Management Team as to his
right to be paid his portion of the Management Team bonus, then in such
event, distribution of the disputed Management Team bonus shall be
deferred pending a final decision by arbitration and/or a final
nonappealable decision of a court of competent jurisdiction. Employer
shall not be liable for any past dividends and/or loss in value in the
disputed Management Team bonus caused by the delay while the dispute is
being arbitrated and/or litigated nor shall Employer be obligated to
pay for any such past due dividends and/or loss in value once the
dispute is resolved. Nor shall Employer be liable to Employee for any
action which Employer undertook and/or refrained from taking in the
exercise by Employer in voting that portion of the Management Team
bonus in dispute. It is specifically agreed among the parties hereto
that no ownership interest in any and/or all of the disputed Management
Team bonus shall vest in Employee until such time as such dispute is
resolved either with Employee and/or any and/or all other members of
the Management Team.
3.5.2 Provided notwithstanding anything herein to the
contrary to the extent Employee receives membership interest in
Employer upon Employee's cessation of employment, for any reason, with
Employer Employee shall be obligated to sell to Employer all of
Employee's membership interest to Employer. The sale to Employer shall
be in accordance with the Operating Agreement of Employer with the
exception that the purchase price shall be payable in three equal
annual installments of principal and interest with the first payment
commencing twelve months from the confection of the sale. This
provision shall survive the termination of this contract and shall be
binding upon the Employee's heirs, successors and/or assigns and this
limitation shall be reflected on the membership certificate of Employee
and any subsequent transfer.
3.5 During the term of this agreement Employer shall provide
Employee with a motor vehicle, of a kind which Employer deems
appropriate, for business purposes. Employer shall pay for all
gasoline, maintenance, insurance, licenses and/or repairs for the
vehicle. Employee shall not use the vehicle in any fashion which would
negate and/or violate and/or reduce the insurance coverage on the
vehicle.
3.6 Employer shall reimburse Employee for all reasonable
expenses incurred by Employee for fulfilling Employee's duties.
Employer shall establish an expense account as it deems necessary for
Employee to conduct the business of Employer. Employer may provide
Employee with a company credit card. Any and all charges for which
reimbursement is sought and/or which is charged on any company provided
credit card shall be documented by Employee with appropriate receipts
and a statement of the business purpose for the expenditure. Employer
reserves the right to terminate Employee's use of any credit card
and/or to refuse to reimburse Employee for any expense which is not
sufficiently documented so that Employer can properly expense same on
its books. Employer further shall have the right to setoff against any
sums owed to Employee any improper, illegal or unsubstantiated expense,
irrespective if Employer has already paid same.
3.7 Employee shall earn 15 days of vacation time per
calendar year ratably with each pay period. Employee shall be entitle
to utilize such vacation time after it has accrued by giving Employer
30 days prior notice of his intent to utilize the vacation time and the
amount of time intended to be used. Authorization to utilize the time
specified by Employee shall be subject to Employer's needs and
obligations as to Employer's business. No unused vacation time shall
be carried forward for any subsequent year nor will Employee be
entitled to compensation for any unused vacation time except in the
event Employer is in need of the services of Employee which would
preclude the utilization of Employee's vacation time. Under the
aforesaid conditions vacation time would accrue and be carried forward
to the next calendar year. However, the failure to utilize the
vacation time in the next calendar year would result in the forfeiture
of the unused time.
4. NON-COMPETE AGREEMENT AND CUSTOMER SOLICITATION.
In consideration of this agreement, Employee specifically agrees
that Employee shall not carry on or engage in any business similar to
that of Employer and/or solicit customers of Employer within the
specific parishes or municipalities reflected on Exhibit A, which is
attached hereto and made a part hereof, so long as Employer carries on
a like business therein during Employee's employment with Employer and
for a period of two years from the termination of this employment
agreement.
Provided notwithstanding anything herein to the contrary, this
non-competition agreement shall not preclude Employee from becoming an
employee of another employer, the business of such employer which may
be in competition with Employer herein provided at no time does
Employee have any equity interest in the business of the new employee,
whether directly and/or indirectly. However, Employee specifically
acknowledges that Employee shall have no right to make use for the
benefit of any such other employer any and all trade secrets and/or
confidential information which Employee may have had access to and/or
have knowledge of as a result of his employment with Employer.
For the purposes of this paragraph 4, the term "business similar
to that of Employer" is defined as the renovation and/or construction
relative to the removal and/or the installation of gasoline storage
tanks including the installation of new gasoline pumps, pump
mechanisms, underground storage tanks, canopies covering all and/or a
portion of the pump area and all related cement work and/or related
site work. It is acknowledged by the parties hereto that the Employer
may begin doing business in other parishes and/or municipalities during
the term of this agreement or may cease doing business in certain
parishes and/or municipalities during the term of this agreement. To
properly reflect the geographical areas of non-competition, Employee
agrees to execute such amendment(s) as may be necessary, from time to
time, during the term of this employment agreement to correctly reflect
the geographical limitations of this non-competition provision.
(Employee further agrees that this non-competition agreement shall
prohibit Employee from engaging in any work or activity to design,
write, modify, or implement any computer program that directly competes
with any confidential computer program owned and/or licensed and/or
marketed by Employer and to which Employee had direct access during the
term of his employment. The term "computer program" shall mean a plan,
routine or set of statements or instructions, including any subset,
subroutine, or portions of instructions, regardless of format or medium
which are capable when incorporated into a machine-reading medium of
causing a computer to perform a particular function or achieve a
particular result.)
Employee further acknowledges that to the extent Employer is
covered by the Economic Espionage Act that it would be a federal
criminal offense for any person, including Employee, to convert a trade
secret to his or her own benefit or the benefit of others intending or
knowing that the offense will injure any owner of the trade secret.
5. TERMINATION.
5.1 This agreement may be terminated for cause as follows:
5.1.1 at the election of Employer upon Employee's breach
of any material provision of this agreement;
5.1.2 at the election of Employee upon the Employer's
breach of any material provision of this agreement;
5.1.3 upon the death of Employee;
5.1.4 at the election of either party upon the total
disability of Employee to perform his normal duties ninety (90) days of
more during this agreement; provided, however, that if Employee elect
to terminate, such termination will be effective ten (10) days after
the Employer's written notice to Employee;
5.1.5 at the election of Employer upon the conviction of
Employee or upon Employee entering a plea of guilty or nolo contendere
to the alleged commission by Employee, as principal, accomplice or
accessory, of a felony crime involving moral turpitude or an act of
fraud embezzlement or dishonesty;
5.1.6 at the election of Employer upon Employee's gross
negligence, willful misconduct or refusal to substantially perform the
responsibilities hereunder during the course of employment; or
5.1.7 at the election of Employer upon the unauthorized
willful disclosure of any trade secret or confidential information of
Employer or the commission of an intentional act which constitutes a
breach of Employee's noncompetition obligations to Employer.
In the event that Employer or Employee elects to terminate this
agreement because of a breach of any material provision hereof pursuant
to paragraph 5.1.1. or 5.1.2, the party electing to terminate this
agreement shall give at least five days written notice to the other
party of its intention to terminate this agreement which notice shall
specify the breach of this agreement upon which such termination is
based and no such termination shall occur if the other party cures the
breach so specified within said five day period except that a party
shall only have the opportunity to cure a breach of a material
provision on tow occasions and thereafter that party need not be given
the opportunity to cure any further material breaches.
All obligation of Employer or the Employee under this agreement
shall immediately cease upon termination of this agreement by Employer
or Employee for cause except as to those provided in paragraph 4 which
shall survive such termination.
5.2 In accordance with Employee's existing and continuing
obligations to Employer, Employee agrees to return to Employer upon
termination all of Employer's property and/or copies thereof, including
without limitation all files, records, computer access codes, credit
cards, computer programs, keys, card key passes, instruction manuals,
documents, business plans and other property which Employee received or
prepared or helped to prepare in connection with Employee's employment
with Employer and to assign to Employer all right, title and interest
in such property and any other inventions, discoveries or works of
authorship created by Employee within the scope and during the course
of Employee's employment.
6. ARBITRATION.
All claims and disputes related to this Agreement shall be subject
to arbitration at the option of either party in accordance with the
Labor Arbitration Rules of the American Arbitration Association.
Either party shall be entitled to notice the other party that it
intends to invoke the arbitration provisions of this paragraph, which
notice shall include a detailed description of the factual basis for a
claimed default including reference to the contractual provisions
hereof which apply to such default. A copy of such notice shall be
simultaneously forwarded to the American Arbitration Association, in
New Orleans, Louisiana, and/or the next closest office to New Orleans
in the event there is no office in New Orleans, Louisiana. Prior to
the arbitration hearing the parties shall be entitled to such discovery
as may then be provided by the Federal Rules of Civil Procedure in
preparation for the arbitration hearing. Said arbitration shall be
heard by a single arbitrator appointed by the American Arbitration
Association and the award rendered by said arbitrator shall be final
with judgment being entered upon it in accordance with the applicable
law of any court having jurisdiction thereof. The final judgment by
the arbitrator shall include written reasons as to the basis for the
award.
6.2 Notwithstanding the above, in the event that the claimed
default by Employee is based upon a claim that Employee has defaulted
with respect to the confidential obligation and/or the covenant not to
compete then in such event, Employer shall not be limited to a
resolution of such by the American Arbitration Association, but
Employer shall have access to any court of competent jurisdiction for
the purpose of seeking a temporary or permanent injunction and
proceeding thereafter with any other claim which Employer may have
against Employee, including without limitation monetary damages.
6.3 In the event of a dispute as to whether or not an issue is
subject to arbitration, then in such event this issue shall be
submitted to a court of competent jurisdiction for a final
determination of such.
7. GOVERNING LAW.
This Agreement shall be construed in accordance with the laws of
the State of Louisiana. The parties agree that a suit may be
instituted in any court within the State of Louisiana and/or any other
jurisdiction permitted by law, subject to the arbitrator provision.
8. SEVERABILITY.
If any provision or any part of any provision of this agreement is
found not to be valid for any reason by a final non-appealable decision
of an arbitrator and/or a court of competent jurisdiction, then such
provision shall be entirely severable from and shall have no effect
upon the remainder of this agreement unless the deletion of such
provision(s) shall go to the moving cause of this agreement.
IN WITNESS WHEREOF we have subscribed our names hereto on the date
first above written in the presence of the undersigned competent
witness after a reading of the whole.
APTL, L.L.C.
By:
Xxxx Xxxxxx
Employee
CONFIDENTIALITY, NON-COMPETITION AGREEMENT AND
TERMS AND CONDITIONS OF EMPLOYMENT
This agreement entered into this day of , 1998, by and
between APTL, L.L.C., a Louisiana limited liability company with its
registered offices in Xxxxxxxxx Xxxxxx, Louisiana (hereinafter referred
to as "Employer" and Xxxxxxx XxXxxxxxxx a person of full age and
majority and a resident and domiciliary of
(hereinafter referred to as "Employee").
WHEREAS Employer is in the business of providing construction
and environmental services, which includes the removal of underground
storage tanks and/or the construction and renovation of service
stations and mechanical contracting; and
WHEREAS Employer desires to hire Employee to perform certain work
and/or labors for Employer,
NOW THEREFORE in consideration of the aforesaid and the benefits
to be derived among the parties, they agree as follows:
1. TERM OF EMPLOYMENT.
Subject to the consummation of that certain Asset and Purchase
Agreement by and between Atlantic Petroleum Technologies of Louisiana,
Inc. ("APTL, Inc.") and APTL L.L.C., the subsequent passing of an act
of sale contemplated therein on the Closing Date, as that term is
defined in the aforesaid agreement, and the termination of Employee's
present contract with APTL, Inc. and the termination of any and/or all
present covenants not to compete and/or confidentiality agreements with
APTL, Inc. and subject to the terms and conditions of this agreement,
Employer hereby hires Employee for the position of Vice-President of
Employer. Employee's employment shall commence on the day of
, 1998 and terminate on the day of , 1999.
Notwithstanding anything to the contrary herein, Employee acknowledges
that Employee may be discharged as provided in paragraph 5 and Employee
shall have the right to terminate his employment at any time.
2. DUTIES OF EMPLOYEE.
During the term of employment, Employee shall perform all such
duties as are typical to that of a senior project manager of a
corporation, subject to such limitation and/or specific requirements
designated by the Members of Employer. Provided, further,
notwithstanding anything herein to the contrary, Employee shall perform
all such other duties as Members of Employer, from time to time, may
find necessary for the benefit of Employer's business although such
work might fall outside the normal scope of Employee's work
classification.
Employee shall devote his full time and efforts to the benefit of
Employer in accomplishing his work obligations. Employee shall engage
in no other occupation or work whatsoever during the time period
required by Employer for Employee's work to be done. Further Employee
shall at all times utilize his best efforts to see that his work is
done effectively and in accordance with all applicable policies and
procedures of Employer and in a lawful manner. Employee shall utilize
his best efforts to conduct himself and perform his work to avoid
accident and/or injury to himself and/or to any other fellow employee
and/or third party. Employee shall comply with all personnel policies
of Employer including without limitation those applicable to sexual
harassment.
Employee acknowledges that by accepting employment with Employer
that Employee owes Employer a duty of loyalty and fidelity. Employee
acknowledges that he may obtain access to specific knowledge and
information about Employer's business which is confidential and/or
which may constitute trade secrets. At all times hereinafter, Employee
covenants and agrees to hold in confidence any and/or all trade secrets
and/or such other information as may be determined to be the
confidential information of Employer. Employee agrees not to use same
for any purpose not necessary for the accomplishment of any task under
this employment agreement and/or to disclose same to anyone including
without limitation other fellow employees whom Employee has no
knowledge of whether such other employee has a right to such
information and/or to disclose same to any other third party without
the prior written consent of Employer. Employee acknowledges that any
and all designs, data, blueprints, and/or procedures developed and/or
arising out of and/or related to and/or resulting from Employee's
business shall be deemed to be proprietary rights of Employer. Any
process and/or procedure and/or creation of any xxxx and/or computer
and/or computer software and/or invention which may be patentable
and/or copyrightable shall be deemed to have been a work for hire on
behalf of the Employer and to the extent necessary Employee agrees to
execute any and all such writings as may be necessary to effectuate the
ownership of any such patent and/or copyright and/or marketable xxxx in
the name of Employer. It is specifically understood and agreed that
Employee shall not be entitled to any royalty or any other additional
remuneration for the creation of any of the aforesaid and that
Employee's sole compensation for any and all such work shall be this
agreement and the salary paid to Employee.
3. COMPENSATION.
3.1 Employee shall receive a salary from Employer of FOUR
THOUSAND SEVEN HUNDRED NINETY-ONE AND 66/100 ($4,791.66) per month,
payable semi-monthly less all applicable taxes and/or deductions for
benefits. Employee shall receive a one percent (1%) membership
interest in Employer after completing one full month of employment
which interest shall be subject to complete forfeiture to Employer in
the event Employee breaches any terms of this agreement. In the event
Employee is entitled to receive the membership interest before he shall
receive same he shall execute an amendment to the Operating Agreement
of Employer and agree to be bound by its terms and those of the
Articles of Organization of Employer provided the execution of any
amendment to the Operating Agreement shall not negate the aforesaid
forfeiture provision.
3.2 Employee shall be eligible to participate in
Employer's/Employee's cost shared insurance program insurance program
which includes life insurance, medical insurance and disability
insurance commencing on the first month following the first sixty days
from Employee's commencement of his employment. Medical insurance may
be obtained which will provide coverage for your spouse and children
subject to the restrictions provided by the Employer's insurer.
Employee acknowledges receipt of Employer's benefit program and the
present cost associated with same. Provided further that in lieu of
participation in Employer's health program, Employee shall have the
option to waive such participation and continue his present health
policy for which Employer shall pay to Employee's health insurer
Employee's monthly premium in an amount not to exceed $300.00 per month
upon Employee's presentation to Employer of the insurer's monthly
premium statement. Employer shall not be liable to Employee and/or his
health insurer for any late payment to the insurer and/or for any
amount due the insurer in excess of the aforesaid $300.00 and/or for
any termination and/or cancellation under the said policy
3.3 Provided Employee is not in default under this agreement
and Employee is an employee of Employer on the 15th day following
Employee's first full 15 calendar months of employment under this
agreement, Employee shall be paid a cash bonus of three percent (3%) of
EBITDA (EBITDA means Earnings Before Deductions for Interest, Taxes,
Depreciation and/or Amortization) provided that EBITDA is in excess of
FOUR HUNDRED THOUSAND AND 00/100 DOLLARS ($400,000.00) for the time
period from the beginning of the first full month in which the Employee
is employed through the last day of the 15th full calendar month.
(Earnings shall be computed as determined under the accounting
methodology utilized by Employer for keeping its financial records
which methodology shall be in accordance with generally accepted
accounting principles provided that in the calculation of earnings for
EBITDA all consulting and/or management fees paid to Primary Systems,
L.L.C. shall not exceed $2500.00 per month.) The cash bonus shall be
paid Employee with Employee's next pay check following the
determination that the bonus is due, less all applicable payroll taxes.
3.4 Employee shall be further entitled to participate in the
"Management Team" bonus. (The term "Management Team" refers to
Xxxxxxxx XxXxxxxxxx, Xxxxxxx XxXxxxxxxx and Xxxx Xxxxxx.)
3.5.1 The Management Team bonus shall be determined as
follows:
a. In the event the gross revenues for the first full 15
calendar month period is greater than or equal to $3,000,000.00 and the
EBITDA for that same period is greater than or equal to $400,000.00,
then in such event the Management Team bonus shall be a two percent
membership interest in Employer for each full $100,000.00 of EBITDA
reflected for the aforesaid 15 month period but not to exceed a maximum
amount of a 16 percent membership interest. This Management Team bonus
is to be apportioned among the Management Team in the amounts of one-
half of the Management Team bonus to Xxxxx XxXxxxxxxx and one-fourth of
the Management Team bonus each to Xxxx Xxxxxx and Xxxxxxx XxXxxxxxxx.
The management team bonus due to Xxxx Xxxxxx and Xxxxxxx XxXxxxxxxx
shall be reduced by the one percent (1%) membership interest granted
after one full month of employment as described in paragraph 3.a.
(Accordingly, the maximum amount of interest which Xxxxxxxx XxXxxxxxxx
could earn would be eight percent with the maximum amount for each of
the other team members would be three percent.) Provided further that
the Management Team bonus shall only be paid in the event the Employee
is employed with Employer on the 15th day following the aforesaid 15
month period. In the event any of the Management Team is not so
employed on the aforesaid date on which the Management Team bonus is to
be paid, then in such event the remaining Management Team individuals
shall share ratably the interest of the non-employed Management Team
member(s). Provided further Employee shall not be entitled to the
Management Team bonus in the event Employee is discharged for cause as
provided for in paragraph 5.1 on or before the date on the Management
Team bonus is to be paid or Employee gives notice of his intent to
voluntarily terminate his employment on or before the date on which the
Management Team bonus is to be paid or Employee gives such notice
within 30 days after the date on which the team bonus is to be paid.
b. Provided not withstanding anything herein to the contrary, in
event of a dispute between Employer and Employee regarding Employee's
right to be paid his share of the Management Team bonus and/or a
dispute exists with any other member of the Management Team as to his
right to be paid his portion of the Management Team bonus, then in such
event, distribution of the disputed Management Team bonus shall be
deferred pending a final decision by arbitration and/or a final
nonappealable decision of a court of competent jurisdiction. Employer
shall not be liable for any past dividends and/or loss in value in the
disputed Management Team bonus caused by the delay while the dispute is
being arbitrated and/or litigated nor shall Employer be obligated to
pay for any such past due dividends and/or loss in value once the
dispute is resolved. Nor shall Employer be liable to Employee for any
action which Employer undertook and/or refrained from taking in the
exercise by Employer in voting that portion of the Management Team
bonus in dispute. It is specifically agreed among the parties hereto
that no ownership interest in any and/or all of the disputed Management
Team bonus shall vest in Employee until such time as such dispute is
resolved either with Employee and/or any and/or all other members of
the Management Team.
3.5.2 Provided notwithstanding anything herein to the
contrary to the extent Employee receives membership interest in
Employer upon Employee's cessation of employment, for any reason, with
Employer Employee shall be obligated to sell to Employer all of
Employee's membership interest to Employer. The sale to Employer shall
be in accordance with the Operating Agreement of Employer with the
exception that the purchase price shall be payable in three equal
annual installments of principal and interest with the first payment
commencing twelve months from the confection of the sale. This
provision shall survive the termination of this contract and shall be
binding upon the Employee's heirs, successors and/or assigns and this
limitation shall be reflected on the membership certificate of Employee
and any subsequent transfer.
3.6 During the term of this agreement Employer shall provide
Employee with a motor vehicle, of a kind which Employer deems
appropriate, for business purposes. Employer shall pay for all
gasoline, maintenance, insurance, licenses and/or repairs for the
vehicle. Employee shall not use the vehicle in any fashion which would
negate and/or violate and/or reduce the insurance coverage on the
vehicle.
3.7 Employer shall reimburse Employee for all reasonable
expenses incurred by Employee for fulfilling Employee's duties.
Employer shall establish an expense account as it deems necessary for
Employee to conduct the business of Employer. Employer may provide
Employee with a company credit card. Any and all charges for which
reimbursement is sought and/or which is charged on any company provided
credit card shall be documented by Employee with appropriate receipts
and a statement of the business purpose for the expenditure. Employer
reserves the right to terminate Employee's use of any credit card
and/or to refuse to reimburse Employee for any expense which is not
sufficiently documented so that Employer can properly expense same on
its books. Employer further shall have the right to setoff against any
sums owed to Employee any improper, illegal or unsubstantiated expense,
irrespective if Employer has already paid same.
3.8 Employee shall earn 15 days of vacation time per
calendar year ratably with each pay period. Employee shall be entitle
to utilize such vacation time after it has accrued by giving Employer
30 days prior notice of his intent to utilize the vacation time and the
amount of time intended to be used. Authorization to utilize the time
specified by Employee shall be subject to Employer's needs and
obligations as to Employer's business. No unused vacation time shall
be carried forward for any subsequent year nor will Employee be
entitled to compensation for any unused vacation time except in the
event Employer is in need of the services of Employee which would
preclude the utilization of Employee's vacation time. Under the
aforesaid conditions vacation time would accrue and be carried forward
to the next calendar year. However, the failure to utilize the
vacation time in the next calendar year would result in the forfeiture
of the unused time.
4. NON-COMPETE AGREEMENT AND CUSTOMER SOLICITATION.
In consideration of this agreement, Employee specifically agrees
that Employee shall not carry on or engage in any business similar to
that of Employer and/or solicit customers of Employer within the
specific parishes or municipalities reflected on Exhibit A, which is
attached hereto and made a part hereof, so long as Employer carries on
a like business therein during Employee's employment with Employer and
for a period of two years from the termination of this employment
agreement.
Provided notwithstanding anything herein to the contrary, this
non-competition agreement shall not preclude Employee from becoming an
employee of another employer, the business of such employer which may
be in competition with Employer herein provided at no time does
Employee have any equity interest in the business of the new employee,
whether directly and/or indirectly. However, Employee specifically
acknowledges that Employee shall have no right to make use for the
benefit of any such other employer any and all trade secrets and/or
confidential information which Employee may have had access to and/or
have knowledge of as a result of his employment with Employer.
For the purposes of this paragraph 4, the term "business similar
to that of Employer" is defined as the renovation and/or construction
relative to the removal and/or the installation of gasoline storage
tanks including the installation of new gasoline pumps, pump
mechanisms, underground storage tanks, canopies covering all and/or a
portion of the pump area and all related cement work and/or related
site work. It is acknowledged by the parties hereto that the Employer
may begin doing business in other parishes and/or municipalities during
the term of this agreement or may cease doing business in certain
parishes and/or municipalities during the term of this agreement. To
properly reflect the geographical areas of non-competition, Employee
agrees to execute such amendment(s) as may be necessary, from time to
time, during the term of this employment agreement to correctly reflect
the geographical limitations of this non-competition provision.
(Employee further agrees that this non-competition agreement shall
prohibit Employee from engaging in any work or activity to design,
write, modify, or implement any computer program that directly competes
with any confidential computer program owned and/or licensed and/or
marketed by Employer and to which Employee had direct access during the
term of his employment. The term "computer program" shall mean a plan,
routine or set of statements or instructions, including any subset,
subroutine, or portions of instructions, regardless of format or medium
which are capable when incorporated into a machine-reading medium of
causing a computer to perform a particular function or achieve a
particular result.)
Employee further acknowledges that to the extent Employer is
covered by the Economic Espionage Act that it would be a federal
criminal offense for any person, including Employee, to convert a trade
secret to his or her own benefit or the benefit of others intending or
knowing that the offense will injure any owner of the trade secret.
5. TERMINATION.
5.1 This agreement may be terminated for cause as follows:
5.1.1 at the election of Employer upon Employee's breach
of any material provision of this agreement;
5.1.2 at the election of Employee upon the Employer's
breach of any material provision of this agreement;
5.1.3 upon the death of Employee;
5.1.4 at the election of either party upon the total
disability of Employee to perform his normal duties ninety (90) days of
more during this agreement; provided, however, that if Employee elect
to terminate, such termination will be effective ten (10) days after
the Employer's written notice to Employee;
5.1.5 at the election of Employer upon the conviction of
Employee or upon Employee entering a plea of guilty or nolo contendere
to the alleged commission by Employee, as principal, accomplice or
accessory, of a felony crime involving moral turpitude or an act of
fraud embezzlement or dishonesty;
5.1.6 at the election of Employer upon Employee's gross
negligence, willful misconduct or refusal to substantially perform the
responsibilities hereunder during the course of employment; or
5.1.7 at the election of Employer upon the unauthorized
willful disclosure of any trade secret or confidential information of
Employer or the commission of an intentional act which constitutes a
breach of Employee's noncompetition obligations to Employer.
In the event that Employer or Employee elects to terminate this
agreement because of a breach of any material provision hereof pursuant
to paragraph 5.1.1. or 5.1.2, the party electing to terminate this
agreement shall give at least five days written notice to the other
party of its intention to terminate this agreement which notice shall
specify the breach of this agreement upon which such termination is
based and no such termination shall occur if the other party cures the
breach so specified within said five day period except that a party
shall only have the opportunity to cure a breach of a material
provision on tow occasions and thereafter that party need not be given
the opportunity to cure any further material breaches.
All obligation of Employer or the Employee under this agreement
shall immediately cease upon termination of this agreement by Employer
or Employee for cause except as to those provided in paragraph 4 which
shall survive such termination.
5.2 In accordance with Employee's existing and continuing
obligations to Employer, Employee agrees to return to Employer upon
termination all of Employer's property and/or copies thereof, including
without limitation all files, records, computer access codes, credit
cards, computer programs, keys, card key passes, instruction manuals,
documents, business plans and other property which Employee received or
prepared or helped to prepare in connection with Employee's employment
with Employer and to assign to Employer all right, title and interest
in such property and any other inventions, discoveries or works of
authorship created by Employee within the scope and during the course
of Employee's employment.
6. ARBITRATION.
All claims and disputes related to this Agreement shall be subject
to arbitration at the option of either party in accordance with the
Labor Arbitration Rules of the American Arbitration Association.
Either party shall be entitled to notice the other party that it
intends to invoke the arbitration provisions of this paragraph, which
notice shall include a detailed description of the factual basis for a
claimed default including reference to the contractual provisions
hereof which apply to such default. A copy of such notice shall be
simultaneously forwarded to the American Arbitration Association, in
New Orleans, Louisiana, and/or the next closest office to New Orleans
in the event there is no office in New Orleans, Louisiana. Prior to
the arbitration hearing the parties shall be entitled to such discovery
as may then be provided by the Federal Rules of Civil Procedure in
preparation for the arbitration hearing. Said arbitration shall be
heard by a single arbitrator appointed by the American Arbitration
Association and the award rendered by said arbitrator shall be final
with judgment being entered upon it in accordance with the applicable
law of any court having jurisdiction thereof. The final judgment by
the arbitrator shall include written reasons as to the basis for the
award.
6.2 Notwithstanding the above, in the event that the claimed
default by Employee is based upon a claim that Employee has defaulted
with respect to the confidential obligation and/or the covenant not to
compete then in such event, Employer shall not be limited to a
resolution of such by the American Arbitration Association, but
Employer shall have access to any court of competent jurisdiction for
the purpose of seeking a temporary or permanent injunction and
proceeding thereafter with any other claim which Employer may have
against Employee, including without limitation monetary damages.
6.3 In the event of a dispute as to whether or not an issue is
subject to arbitration, then in such event this issue shall be
submitted to a court of competent jurisdiction for a final
determination of such.
7. GOVERNING LAW.
This Agreement shall be construed in accordance with the laws of
the State of Louisiana. The parties agree that a suit may be
instituted in any court within the State of Louisiana and/or any other
jurisdiction permitted by law, subject to the arbitrator provision.
8. SEVERABILITY.
If any provision or any part of any provision of this agreement is
found not to be valid for any reason by a final non-appealable decision
of an arbitrator and/or a court of competent jurisdiction, then such
provision shall be entirely severable from and shall have no effect
upon the remainder of this agreement unless the deletion of such
provision(s) shall go to the moving cause of this agreement.
IN WITNESS WHEREOF we have subscribed our names hereto on the date
first above written in the presence of the undersigned competent
witness after a reading of the whole.
APTL, L.L.C.
By:
Xxxxxxx XxXxxxxxxx
Employee
