EXHIBIT 10
This Employment Agreement ("Agreement") is entered into as of April 1,
1996, by and between Comprehensive Environmental Systems, Inc., a Delaware
corporation (the "Company") and Xxx X. Xxxxxx ("Xxxxxx"). These persons or
entities may from time to time herein be referred to as the party or parties.
RECITALS
The parties enter into this Agreement with respect to the following facts
and circumstances:
X. Xxxxxx is presently the Chief Operating Officer of the Company.
B. The Company believes that Xxxxxx'x skills and knowledge are essential to
its continued success and by this Agreement, desires to secure Xxxxxx'x
continued employment as Chief Operating Officer for the term expressed below.
X. Xxxxxx desires to be employed by the Company.
CONSIDERATION
In consideration of the mutual covenants contained herein, to give effect
to the Recitals stated above, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby, acknowledged, the parties agree as
follows:
1.0 Term. This Agreement shall commence on April 1, 1995 and shall continue
hereafter for a period of six (6) years (the "Term"). This Agreement may be
terminated only as provided at Section 4.0 below.
2.0 Duties. Xxxxxx shall have the following obligations hereunder:
2.1 Title. Xxxxxx shall serve the Company as its Chief Operating
Officer and shall have the right and authority to utilize said title in the
conduct of his business and personal affairs.
2.2 Job Description. Xxxxxx shall perform such duties as the Board of
Directors of the Company may from time to time direct and as are consistent with
the position of Chief Operating Officer, including specifically, but without
limitation, overseeing the day to day operations of the Company and its
subsidiaries; establishing and maintaining the Company's books, records and
accounts; and investigating acquisitions investments and divestitures by the
Company. This provision shall not be deemed to prevent Xxxxxx from raising
capital for the Company and being remunerated at normal market rates therefore,
nor shall such remuneration be deemed to violate any duty to the Company as a
result of his employment.
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2.3 Best Efforts. Xxxxxx shall use his best efforts, business
judgment, skill and knowledge to the advancement of the business and interests
of the Company and to the discharge of his duties and responsibilities
hereunder. The term "best" shall mean the use of such nonexclusive effort as a
reasonable man would be expected to devote under the circumstances and facts
then prevailing.
3.0 Compensation and Benefits. The Company, at its expense, shall provide
to Xxxxxx the following compensation and benefits:
3.1 Salary. The Company shall pay Xxxxxx the following annual salaries
upon the same general terms and at the same intervals as the payment of the
salaries of other employees of the Company:
Year Amount
1995 $156,000
1996 $168,000
1997 $180,000
1998 $192,000
1999 $204,000
2000 $216,000
3.2 Insurance. The Company, at its sole expense, shall provide Xxxxxx
with (i) a policy of medical insurance that will insure Xxxxxx regardless of his
physical location; (ii) a whole life insurance policy with death benefits of not
less than $2,000,000; and (iii) a disability policy with benefits equal to or
greater than the benefits currently provided to Xxxxxx by the Company at the
time of execution of this Agreement.
The Company agrees to assign any policy of life insurance as directed
by Xxxxxx to effect a split-dollar arrangement; and further agrees to pay up and
transfer any right or interest it may have to the trustee of the insurance trust
holding ownership of said policy at the time should, for any reason, this
Agreement terminate.
3.3 Payment and Reimbursement of Expenses. The Company shall provide
Xxxxxx with an expense account against which he may charge all reasonable
travel, subsistence, entertainment and similar expenses incurred by him in the
performance of his obligations hereunder and shall promptly pay when due all
such statements and bills upon submission by Xxxxxx and in accordance with the
then usual procedures of the company
Additionally, the Company shall pay a reasonable sum as an automobile
allowance including the costs of leasing, insurance, maintenance and repair.
Finally, the Company shall pay the actual costs incurred by Xxxxxx for
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cellular telephone and pager communications including equipment, service and
long distance charges.
3.4 Executive Bonus. The Company shall allow Xxxxxx to participate in
any executive bonus plan upon the same terms and conditions as other executive
officers of Company.
3.5 Stock Options. Upon the execution hereof, the Company shall grant
and Issue to Xxxxxx non qualified options to purchase for $1.50 per share two
hundred and fifty thousand (250,000) shares of validly issued, fully paid and
non assessable common stock of the Company, $.0001 par value, including rights
to demand registration at Company expense. Said options shall conform to the
Stock Option Grant attached hereto as Exhibit A.
The Company, by its execution hereof acknowledges, confirms and
ratifies the March 10, 1995 grant to Xxxxxx of 2,000,000 non qualified stock
options exercisable at 20% to of the closing market bid price as of the last
trading day immediately proceeding the date of exercise, which were approved by
the shareholders at the last annual meeting of the company, to Xxxxxx and
confirms that the additional options being granted to Xxxxxx in this Section 3.5
are in addition to the previous grant. A copy of the previous grant of options
is attached hereto as Exhibit B.
3.6 Vacation. Xxxxxx shall be entitled to paid vacation each year in
accordance with the following schedule:
1995 2 weeks
1996 3 weeks
1997-2000 4 weeks
All vacation time shall be taken at such times and intervals as shall be
determined by Xxxxxx, subject to the reasonable business needs of the Company.
4.0 Termination. This Agreement may be terminated only as follows:
4.1 Death of Xxxxxx. The death of Xxxxxx shall terminate this
Agreement provided, however, that the Company's obligation to pay the Salary
described in Section 3.1 shall survive termination and continue through the date
on which the Term would have naturally ended pursuant to Section 1.0 except for
such early termination. Additionally, the following obligations shall survive
termination and the Company shall: (i) timely pay any statements or bills for
expenses incurred by Xxxxxx prior to the time of his death as is described at
Section 3.3 above; (ii) disburse to Xxxxxx'x heirs or estate any executive bonus
then due and owing Xxxxxx pursuant to Section 3.4 above; and (iii) allow
Xxxxxx'x heirs or estate to exercise, according to the terms thereof, any stock
options previously granted, granted by this
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Agreement pursuant to Section 3.5 above, or that may subsequently be granted by
the Company.
4.2 Termination by Company. Subject to the timely payment of the
liquidated damages described hereafter, the Company may terminate this Agreement
upon thirty (30) days written notice to Xxxxxx. In the event the Company
terminates this Agreement pursuant to this section or takes such action that
prevents Xxxxxx'x performance of his obligations hereunder thus effecting a
termination, then, upon the effective date of that termination, the Company
shall pay in certified funds a lump sum amount equal to the sum of the
following: (i) the total of the remaining unpaid salary described in Section 3.1
above; (ii) an amount equal to the annual premiums of the medical and life
insurance described at Section 3.2(i) and 3.2(ii) above for the balance of the
Term; (iii) any amounts due for reimbursement of expenses as described in
Section 3.3 above: and (iv) any executive bonus then due and owing as provided
at Section 3.4 above.
In the event of any dispute between the Company and Xxxxxx concerning
the amount due, either party by written request may request that the Company's
independent outside auditor determine the amount owing hereunder. The costs of
such determination shall be paid by the Company.
The Company acknowledges that the amount and terms for payment of
these sums constitute a fair and equitable severance provision in the nature of
a liquidated damages provision. The Company waives any claim or right that it
might otherwise have to contest the validity or terms of payment. Further, to
the extent that the amount of damages owing hereunder has been determined by its
independent outside auditor, the Company waives any claim or right that it might
otherwise have to contest the amount of the damages described in this Section
4.2. The Company also acknowledges that Xxxxxx is relying upon the protection
provided to him by this liquidated damages provision as an inducement to his
entering into this Agreement.
The Company acknowledges that its failure to pay the above described
severance amount as liquidated damages to Xxxxxx when due shall cause him to
suffer immediate and irreparable harm, thus entitling him to enforce the payment
of these sums by actions at law and in equity for preliminary and permanent
injunctive relief as further described in Section 8.0 below.
4.3 Termination by Xxxxxx. Xxxxxx may terminate this Agreement upon
thirty (30) days written notice to the Company.
5.0 Covenant Not to Disclose. Other than is necessary in the ordinary
course of the Company's business. Xxxxxx shall not disclose, make accessible or
use for the benefit of any other person or entity, at any time during or after
the Term, any information of a confidential, proprietary or secret nature
relating to the business, products or activities of the Company (the
"Confidential Information"). Such
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Confidential information shall include, but not be limited to, information
relating to plans, devices, customers, marketing and sales. Information shall be
Confidential Information whether or not such information was developed, devised
or otherwise created in whole or in part by the efforts of Xxxxxx, and whether
or not such information is a matter of public knowledge, unless the Company has
authorized disclosure of such information to the general public. All documents,
records and other media of every kind and description relating to the business,
present or otherwise, of the Company and any copies, in whole or in part,
thereof, whether or not prepared by Xxxxxx, shall be the sole and exclusive
property of the Company. Xxxxxx shall safeguard ail such property and shall
surrender such property in his possession or control to the Company upon his
termination of this Agreement or upon the request of the Company following its
termination of this Agreement in accordance with the terms hereof.
6.0 Representations and Warranties of Xxxxxx. Xxxxxx hereby represents and
warrants to the Company that he is under no contractual or other restriction
which is inconsistent with the execution of this Agreement, the performance of
his duties hereunder, or the rights of the Company hereunder.
7.0 Counterparts and Headings. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original and all of which together shall constitute but one and the same
instrument. The headings in this agreement are solely for convenience of
reference and shall be given no effect in the construction or interpretation of
this Agreement.
8.0 Enforcement. Xxxxxx acknowledges that he has carefully read and
considered all terms and conditions of this Agreement, including the restraints
imposed upon him pursuant to Section 5 hereof. Xxxxxx agrees that said
restraints are necessary for the reasonable and proper protection of the Company
and that any breach by Xxxxxx of such section would cause irreparable damage to
the Company. Xxxxxx therefore agrees that the Company, in addition to any other
remedies available to it, shall be entitled to preliminary and permanent
injunctive relief against any breach or threatened breach by Xxxxxx of such
section. Similarly, the Company acknowledges that it has carefully read and
considered all terms and conditions of this Agreement, including the continuing
financial obligations in the event of termination, including the possibility of
lump sum payments, that may be imposed upon it pursuant to this Agreement. The
Company agrees that the financial obligations created hereby, including the
possibility of lump sum payments, are necessary for the reasonable and proper
protection of Xxxxxx, his heirs or estate, and that any breach by the Company of
its financial obligations to Xxxxxx pursuant to this Agreement would cause
irreparable damage to Xxxxxx, his heirs or estate. The Company therefore agrees
that Xxxxxx in addition to any other remedies (including a claim for money
damages) available to him, his heirs or estate, shall be entitled to preliminary
and permanent injunctive relief against any breach or threatened breach by the
Company of this Agreement.
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9.0 No Waiver. The waiver by any party of a breach of any provision of this
Agreement shall not operate or be construed as a Waiver of any subsequent breach
of such provision or any other provision hereof.
10.0 Notices. Any notice or communication required or permitted hereunder
shall be deemed given when delivered personally or when deposited in the United
States mails, by certified mail, return receipt requested, postage prepaid:
If to the Company at:
Comprehensive Environmental Systems. Inc.
00-X Xxxxx Xxxxxx
Xxxx Xxxxxxx, XX 00000
If to Xxxxxx, to him at:
Xxx Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
or to such other address of which either party may notify the other party by
notice similarly given.
11.0 Assignment; No Third Party Beneficiaries. The Company may not assign
its rights or obligations pursuant to this Agreement. Xxxxxx may not assign or
delegate to any third party his obligations under this Agreement. In all other
respects, the provisions of this Agreement shall be binding upon and inure to
the benefit of Xxxxxx, his heirs, estate or personal representatives. This
Agreement does not create, and shall not be construed as creating, any rights
enforceable by any person not a party to this Agreement, except as provided in
this Section 11.
12.0 Entire Agreement; Amendment. This instrument contains the entire
agreement between the parties with respect to the subject matter addressed
herein and all prior discussions, understandings, negotiations and agreements
are merged herein. This Agreement may not be changed orally (and no claim of an
oral modification shall be accepted as evidence of such change) but only by an
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification, extension or discharge is sought.
13.0 Corporate Approval. By his or their signature(s) on this Agreement,
the undersigned officer(s) of the Company represent and warrant as follows: (i)
that they have obtained all necessary and appropriate approvals from the
Company's board of directors; (ii) that the Company is and shall remain to be
legally bound pursuant to the terms of this Agreement; and (iii) the Company
through its officer(s) signature(s)
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hereunder shall be deemed to have waived any claim of defect for failure to
comply with corporate policies and procedures pertaining to the execution of
agreements creating obligations of the Company. Any such dispute shall not
affect the enforceability hereof and shall be deemed to be a dispute between the
Company and its undersigned representative.
14.0 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as a
sealed instrument, effective as of the day and year first above written.
Attest: Comprehensive Environmental Systems, Inc.
/s/[illegible] By:/s/ Xxxxxx X. Xxxxxxx
------------------------------ ----------------------------
Xxxxxx X. Xxxxxxx, CEO and President
Attest Xxx Xxxxxx
/s/[illegible] By: /s/Xxx X. Xxxxxx
------------------------------ ----------------------------
Xxx X. Xxxxxx, Individually
/s/[illegible] Attest
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EXHIBIT 10
EMPLOYMENT AGREEMENT, dated as of February 1, 1995, between COMPREHENSIVE
ENVIRONMENTAL SYSTEMS, INC., a Delaware corporation with offices at 00X Xxxxx
Xxxxxx, Xxxx Xxxxxxx, Xxx Xxxx 00000 (the "Company"); and XXXXX X. XXXXXXX,
residing at 00 Xxxxxxx Xxxx, Xxxxx Xxxxx, Xxx Xxxx 00000 (the "Employee").
WITNESSETH:
WHEREAS, the Company desires to engage the Employee to perform services for
the Company, and the Employee desires to perform such services, on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises herein set forth,
the parties hereto agree as follows:
1. Term.
The Company agrees to employ the Employee, and the Employee agrees to be
employed by the Company, on the terms and conditions of this Agreement for a
period of six years commencing on the date hereof and ending on January 31,
2001, or such shorter period as may be provided for herein. The Employee shall
have the option of renewing this Agreement upon its scheduled expiration for an
additional period of three years and on terms no less favorable than those
contained herein. The period during which the Employee is employed hereunder is
hereinafter referred to as the "Employment Period."
2. Duties and Services.
During the Employment Period, the Employee shall be employed by the Company
as its Treasurer and Chief Financial Officer and, in connection therewith, shall
evaluate all acquisition, investment or divestiture proposals as may be
presented to the Company and shall recommend to the Board of Directors of the
Company the appropriate transactional structure that the Employee deems to be in
the best interest of the Company and its shareholders. Employee shall be
available to travel as the needs of the business require.
3. Compensation and Related Matters.
(a) As compensation for his services hereunder, the Company shall pay the
Employee, during the Employment Period, a salary equal to (i) $96,000 per year
for the first year during the Employment Period, (ii) $108,000 per year for the
second year during the Employment Period, and (iii) $120, 000 per year for the
third year during the Employment Period. The Employee's salary shall be payable
in accordance with the Company's normal payroll practices, and the Company shall
withhold all customary federal, state and local taxes.
(b) The Employee shall be entitled to an expense account for the charging
of all reasonable travel and other expenses necessarily incurred in connection
with the performance of his services hereunder, which charges the Company will
pay upon submission of written statements and bills in accordance with the then
regular procedures of the Company.
(c) The Employee shall be entitled to full medical benefits, an automobile
lease allowance of $600 per month, plus all maintenance costs as may be
necessary therefor, a cellular telephone and beeper, and term life insurance in
the amount of $500,000 naming his estate as beneficiary thereof, all of which
shall be at the Company's expense.
(d) The Employee shall be entitled to participate in an executive bonus
plan when established by the Board of Directors. The Employee shall also be
entitled to four weeks of paid vacation per year during the Employment Period.
(e) The Employee shall be entitled to receive stock options for the
purchase of up to 100,000 shares of the company's common stock, all in
accordance with a separate agreement to be entered into between the Company and
the Employee. Such separate agreement shall provide that from the date of grant
of such stock options, such stock options shall be exercisable for up to ten
years and that up to 50,000 shares of common stock under such stock options may
be exercisable commencing six months after such date of grant, and up to an
additional 50,000 shares of common stock under such stock options may be
exercisable commencing one year after such data of grant. In the event that the
Employee's employment hereunder is terminated by the Company without cause, then
all such 100,000 shares of common stock that are the subject of such stock
options shall immediately upon such termination become fully vested to the
Employee, and fully exercisable by the Employee upon such termination.
$132,000 per year for year four
/s/ illegible $144,000 per year for year five
$156,000 per year for year six
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4. Representations and Warranties of the Employee.
The Employee represents and warrants to the Company that he is under no
contractual or other restriction or obligation which is inconsistent with the
execution of this Agreement, the performance of his duties hereunder, or the
other rights of the Company hereunder.
5. Confidential Information.
All confidential information which the Employee may now possess, may obtain
during or after the Employment Period, or may create prior to the end of the
Employment Period relating to the business of the Company or of any customer or
supplier of the Company shall not be published, disclosed, or made accessible by
him to any other person, firm or corporation either during the or after the
termination of his employment or used by him except during the Employment Period
in the business and for the benefit of the Company, in each case without prior
written permission of the Company. The Employee shall return all tangible
evidence of such confidential information to the Company prior to or at the
termination of his employment hereunder.
6. Termination.
Notwithstanding anything herein contained, if on or after the date hereof
and prior to the end of the Employment Period:
(a) either (i) the Employee shall be convicted of a crime, (ii) the
Employee shall commit any act or omit to take any action in bad faith and
to the detriment of the Company, or (iii) the Employee shall breach any
material term of this Agreement (including without limitation any material
representation, warranty or covenant contained herein) and fail to correct
such breach within fifteen (15) days after notice thereof is given to the
Employee by the Company, then, and in each such case, the Company shall
have the right to give notice of termination of the Employee's services
hereunder as of a date (not earlier than fifteen (15) days from such
notice) to be specified in such notice, and this Agreement shall terminate,
subject to the company's payment obligations hereinafter described, on the
date so specified in such notice, or
(b) the Employee shall be physically or mentally incapacitated or
disabled or otherwise
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unable fully to discharge his duties hereunder for a period of four (4)
consecutive months, then this Agreement shall terminate, subject to the
Company's payment obligations hereinafter described, upon the conclusion of
such four (4) month period, or
(c) the Employee shall die, then this Agreement shall terminate,
subject to the Company's payment obligations hereinafter described, on the
date of such Employee's death, or
(d) the Company shall terminate the Employee's employment hereunder
without cause upon notice to the Employee which shall specify a date of
termination not earlier than fifteen (15) days from such notice, then this
Agreement shall terminate, subject to the Company's payment obligations
hereinafter described, on the date so specified in such notice,
whereupon (i) the Employee shall be entitled to receive his compensation at the
rate provided in Section 3 to the date on which termination shall take effect in
the case of Section 6(a) hereof, (ii) the Employee or his estate, as the case
may be, shall be entitled to receive his compensation at the rate and in the
manner provided in Section 3 through the end of the term specified in Section 1
in the case of Section 6(b) or 6(c), and (iii) the Employee shall be entitled to
receive his compensation at the rate provided in Section 3 through the end of
the term specified in Section 1 payable in one lump sum on the date on which
termination shall take effect in the case of Section 6(d).
7. Modification.
This Agreement sets forth the entire understanding of the parties with
respect to the subject matter hereof, supersedes all existing agreements between
them concerning such subject matter, and may be modified only by a written
instrument duly executed by each party.
8. Notices.
Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be mailed by certified mail, return
receipt requested, or hand delivered against receipt to the party to whom it is
to be given at the address of such party set forth in the preamble to this
Agreement (or to such other address as the party shall have furnished in writing
in accordance with the provisions of this Section 8). Notice to the estate of
the Employee shall be
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sufficient if addressed to the Employee as provided in this Section 8. Any
notice or other communication (a) given by hand delivery shall be deemed given
on the date of delivery, and (b) given by certified mail shall be deemed given
at the time of certification thereof, except that a notice changing a party's
address shall be deemed given at the time of receipt thereof.
9. Waiver.
Any waiver by any party of a breach of any provision of this Agreement
shall not operate as or be construed to be a waiver of any other breach of such
provision or of any breach of any other provision of this Agreement. The failure
of a party to insist upon strict adherence to any term of this Agreement on one
or more occasions shall not be considered a waiver or deprive that party of the
right thereafter to insist upon strict adherence to that term or any other term
of this Agreement. Any waiver must be in writing.
10. Binding Effect.
The Employee's rights and obligations under this Agreement shall not be
transferable by assignment or otherwise. The provisions of this Agreement shall
be binding upon and inure to the benefit of the Employee and his heirs and
personal representatives, and shall be binding upon and inure to the benefit of
the Company and its successors and assigns.
11. No Third Party Beneficiaries.
This Agreement does not create, and shall not be construed as creating, any
rights enforceable by any person not a party to this Agreement (except as
provided in Section 10).
12. Headings.
The headings in this Agreement are solely for convenience of reference and
shall be given no effect in the construction or interpretation of this
Agreement.
13. Counterparts; Governing Law.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to its
conflict of laws rules.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first above written.
COMPREHENSIVE ENVIRONMENTAL SYSTEMS, INC.
By: /s/Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Chairman & CEO
/s/Xxxxx X. Xxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxx
ATTEST: /s/L Xxxxxx
--------------------------------------
NAME: Xxx Xxxxxx
TITLE:COO
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