Employment Agreement
Exhibit
10.3
This
Employment Agreement (the “Agreement”)
dated
as of ___, 2006 and effective as of January 1, 2006 (the “Effective
Date”),
is
made by and between Xxxxx Xxxxxx (the “Executive”)
and
Envirosafe Corporation and any of its subsidiaries and affiliates as may employ
Executive from time to time (collectively, and together with any successor
thereto, the “Company”).
RECITALS
|
A.
|
It
is the desire of the Company to assure itself of the services of
the
Executive by engaging the Executive to perform services under the
terms
hereof.
|
|
B.
|
The
Executive desires to provide services to the Company on the terms
herein
provided.
|
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing and of the respective covenants
and
agreements set forth below the parties hereto agree as follows:
1. Certain
Definitions.
| (a) |
“Annual
Base Salary”
shall have the meaning set forth in Section 3(a).
|
| (b) |
“Board”
shall mean the Board of Directors of the
Company.
|
| (c) |
The
Company shall have “Cause”
to terminate the Executive’s employment hereunder
upon:
|
| (i) |
Executive’s
failure to (A) follow a legal order of the Board or (B) failure to
substantially perform any duties under this Agreement (as reasonably
determined by the Board), other than any such failure or failures
resulting from the Executive’s Disability, and such failure or failures
are not remedied within 30 days after receipt of written
notice;
|
| (ii) |
Executive’s
gross or willful misconduct to the
Company;
|
| (iii) |
Executive’s conviction
of a felony or of a crime involving material dishonesty or moral
turpitude; or
|
| (iv) |
Executive’s
fraud or personal dishonesty involving the Company’s
assets.
|
1
| (d) |
“Company”
shall have the meaning set forth in the preamble
hereto.
|
| (e) |
“Date
of Termination”
shall mean (i) if the Executive’s employment is terminated by his death,
the date of his death; (ii) if the Executive’s employment is terminated
pursuant to Section
4(a)(ii) - (iv)
either the date indicated in the Notice of Termination or the date
specified by the Company pursuant to Section
4(b),
whichever is earlier; (iii) if the Executive’s employment is terminated
pursuant to Section
4(a)(v)
or
Section
4(a)(vi),
the expiration of the then-applicable
Term.
|
| (f) |
“Disability”
shall mean the absence of the Executive from the Executive’s duties to the
Company on a full-time basis for a total of six months during any
12-month
period as a result of incapacity due to mental or physical illness
which
is determined to be reasonably likely to extend beyond the completion
of
the Term and which determination is made by a physician selected
by the
Company and acceptable to the Executive or the Executive’s legal
representative (such agreement as to acceptability not to be withheld
unreasonably). A Disability shall not be “incurred” hereunder until, at
the earliest, the last day of the sixth month of such
absence.
|
| (g) |
“Executive”
shall have the meaning set forth in the preamble
hereto.
|
| (h) |
“Inventions”
shall have the meaning set forth in Section
8.
|
| (i) |
“Notice
of Termination”
shall have the meaning set forth in Section 4(b).
|
| (j) |
“Term”
shall have the meaning set forth in Section 2(b).
|
2
2. Employment.
| (a) |
The
Company shall employ the Executive and the Executive shall enter
the
employ of the Company, for the period set forth in Section
2(b),
in the position set forth in Section
2(c),
and upon the other terms and conditions herein provided.
|
| (b) |
The
initial term of employment under this Agreement (the “Initial
Term”)
shall be for the period beginning on the Effective Date of this Agreement
and ending on the [third]
anniversary thereof, unless earlier terminated as provided in Section
4.
The employment term hereunder shall automatically be extended for
successive one-year periods (“Extension
Terms”
and, collectively with the Initial Term, the “Term”)
unless either party gives notice of non-extension to the other no
later
than 90 days prior to the expiration of the then-applicable Term.
|
| (c) |
Position
and Duties.
The Executive shall serve as Chief Executive Officer of the Company
and
shall have the authorities duties and responsibilities customarily
commensurate with such position and such additional customary
responsibilities, duties and authority, as may from time to time
be
reasonably assigned to the Executive by the Board. The Executive
shall
report to the Board. The Executive agrees to observe and comply with
the
Company’s rules and policies as adopted by the Company from time to time.
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3. Compensation
and Related Matters.
| (a) |
Annual
Base Salary.
During the Term, the Executive shall receive a base salary at a rate
of
$120,000 per annum, which shall be paid in accordance with the customary
payroll practices of the Company, subject to increase as determined
by the
Board, in its sole discretion (the “Annual
Base Salary”).
|
| (b) |
Annual
Bonus.
During the Term, the Executive will be eligible to receive an annual
performance-based bonus which shall be determined based upon performance
targets established by the Board. Such bonus shall be payable at
such time
as bonuses are paid to other senior executive officers who participate
therein.
|
| (c) |
Benefits.
The Executive shall be entitled to participate in all employee benefit
plans, programs and arrangements of the Company which are applicable
to
the senior officers of the Company at a level commensurate with the
Executive’s position.
|
| (d) |
Expenses.
During the Term, the Company shall reimburse the Executive for all
reasonable travel and other business expenses incurred by his in
the
performance of his duties to the Company in accordance with the Company’s
expense reimbursement policy.
|
| (e) |
Vacation.
During the Term, the Executive shall be entitled to four weeks paid
vacation each calendar year. Any vacation shall be taken at the reasonable
and mutual convenience of the Company and the Executive.
|
3
4. Termination.
The
Executive’s employment hereunder may be terminated by the Company or the
Executive, as applicable, without any breach of this Agreement only under the
following circumstances:
| (a) |
Circumstances.
|
| (i) |
Death.
The Executive’s employment hereunder shall terminate upon his death.
|
| (ii) |
Disability.
If the Executive has incurred a Disability, the Company may give
the
Executive written notice of its intention to terminate the Executive’s
employment. In that event, the Executive’s employment with the Company
shall terminate effective on the 30th
day after receipt of such notice by the Executive, provided that
within
the 30 days after such receipt, the Executive shall not have returned
to
full-time performance of his duties.
|
| (iii) |
Termination
for Cause.
The Company may terminate the Executive’s employment for
Cause.
|
| (iv) |
Termination
without Cause.
The Company may terminate the Executive’s employment without
Cause.
|
| (v) |
Non-extension
of Term by the Company.
The Company may give notice of non-extension to the Executive pursuant
to
Section
2(b).
|
| (vi) |
Non-extension
of Term by the Executive.
The Executive may give notice of non-extension to the Company pursuant
to
Section
2(b).
|
| (b) |
Notice
of Termination.
Any termination of the Executive’s employment by the Company or by the
Executive under this Section
4
(other than termination pursuant to paragraph (a)(i)) shall be
communicated by a written notice to the other party hereto indicating
the
specific termination provision in this Agreement relied upon, setting
forth in reasonable detail the facts and circumstances claimed to
provide
a basis for termination of the Executive’s employment under the provision
so indicated, and specifying a Date of Termination which, if submitted
by
the Executive, shall be at least 30 days following the date of such
notice
(a “Notice
of Termination”)
provided,
however,
that the Company may, in its sole discretion, change the Date of
Termination to any date following the Company’s receipt of the Notice of
Termination. A Notice of Termination submitted by the Company may
provide
for a Date of Termination on the date the Executive receives the
Notice of
Termination, or any date thereafter elected by the Company in its
sole
discretion. The failure by the Company to set forth in the Notice
of
Termination any fact or circumstance which contributes to a showing
of
Cause shall not waive any right of the Company hereunder or preclude
the
Company from asserting such fact or circumstance in enforcing the
Company’s rights hereunder.
|
| (c) |
Company
Obligations Upon Termination.
Upon termination of the Executive’s employment, the Executive (or the
Executive’s estate) shall be entitled to receive a lump sum equal to the
Executive’s Annual Base Salary through the Date of Termination not
theretofore paid, any bonus if declared or earned but not yet paid
for a
completed fiscal year, any expenses owed to the Executive, any accrued
vacation pay owed to the Executive, and any amount arising from the
Executive’s participation in, or benefits under any employee benefit
plans, programs or arrangements, which amounts shall be payable in
accordance with the terms and conditions of such employee benefit
plans,
programs or arrangements.
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4
5. Severance
Payments.
| (a) |
Termination
upon death or Disability.
If the Executive’s employment shall terminate pursuant to Sections
4(a)(i)
due to the Executive’s death, or pursuant to Section
4(a)(ii)
due to the Executive’s Disability, the Company shall pay to the Executive
(or the Executive’s estate) within 30 days following the Date of
Termination and otherwise in accordance with the Company’s regular payroll
practice, an amount equal to the Annual Base Salary that the Executive
would have been entitled to receive if the Executive had continued
his
employment for a period of six months following the Date of
Termination.
|
| (b) |
Survival.
The expiration or termination of the Term shall not impair the rights
or
obligations of any party hereto, which shall have accrued prior to
such
expiration or termination.
|
| (c) |
Mitigation.
The Executive shall have no duty to mitigate the amount of any payment
provided for hereunder by seeking other employment, and any income
earned
by the Executive from other employment or self-employment shall not
be
offset against any obligations of the Company to the Executive
hereunder.
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6. Competition.
| (a) |
The
Executive shall not, at any time during the Term or during the 12-month
period following the later of the expiration of the Term or the Date
of
Termination directly or indirectly engage in, have any equity interest
in,
or manage or operate any person, firm, corporation, partnership or
business (whether as director, officer, employee, agent, representative,
partner, security holder, consultant or otherwise) that engages in
any
business which competes with any business of the Company or any entity
owned by the Company anywhere in the United States provided,
however,
that the Executive shall be permitted to acquire a passive stock
or equity
interest in such a business provided the stock or other equity interest
acquired is not more than five percent (5%) of the outstanding interest
in
such business.
|
| (b) |
During
the Term and during the term set forth in Section
6(a),
the Executive will not, except in the performance of his duties for
the
Company, and will not permit any of his affiliates to, directly or
indirectly, recruit or otherwise solicit or induce any non-clerical
employee, customer, subscriber or supplier of the Company to terminate,
or
otherwise change its relationship with the Company, or establish
any
relationship with the Executive or any of his affiliates for any
business
purpose that is prohibited by subsection (a) above. Nothing herein
shall
prevent the Executive from serving as a
reference.
|
| (c) |
In
the event the terms of this Section
6
shall be determined by any court of competent jurisdiction to be
unenforceable by reason of its extending for too great a period of
time or
over too great a geographical area or by reason of its being too
extensive
in any other respect, it will be interpreted to extend only over
the
maximum period of time for which it may be enforceable, over the
maximum
geographical area as to which it may be enforceable, or to the maximum
extent in all other respects as to which it may be enforceable, all
as
determined by such court in such
action.
|
| (d) |
As
used in this Section
6,
the term “Company” shall include the Company, its parent and any of its
direct or indirect subsidiaries.
|
5
7. Nondisclosure
of Proprietary Information.
| (a) |
Except
as required in the faithful performance of the Executive’s duties
hereunder or pursuant to Section
7(c),
the Executive shall, in perpetuity, maintain in confidence and shall
not
directly, indirectly or otherwise, use, disseminate, disclose or
publish,
or use for his benefit or the benefit of any person, firm, corporation
or
other entity any confidential or proprietary information or trade
secrets
of or relating to the Company, including, without limitation, information
with respect to the Company’s operations, processes, products, inventions,
business practices, finances, principals, vendors, suppliers, customers,
potential customers, marketing methods, costs, prices, contractual
relationships, regulatory status, compensation paid to employees
or other
terms of employment, or deliver to any person, firm, corporation
or other
entity any document, record, notebook, computer program or similar
repository of or containing any such confidential or proprietary
information or trade secrets. The parties hereby stipulate and agree
that
as between them the foregoing matters are important, material and
confidential proprietary information and trade secrets and affect
the
successful conduct of the businesses of the Company (and any successor
or
assignee of the Company).
|
| (b) |
Upon
termination of the Executive’s employment with the Company for any reason,
the Executive will promptly deliver to the Company all correspondence,
drawings, manuals, letters, notes, notebooks, reports, programs,
plans,
proposals, financial documents, or any other documents concerning
the
Company’s customers, business plans, marketing strategies, products or
processes that are in his possession, custody or control. The Executive
shall be permitted to retain his rolodex (and similar address and
telephone directories).
|
| (c) |
The
Executive may respond to a lawful and valid subpoena or other legal
process but shall: (i) give the Company the earliest reasonably possible
notice thereof, (ii) as much reasonably in advance of the return
date as
possible, make available to the Company and its counsel the documents
and
other information sought, and (iii) reasonably assist such counsel
in
resisting or otherwise responding to such process. Notwithstanding
Section
7(a),
the Executive may use or disclose information that is public knowledge.
|
| (d) |
As
used in this Section
7,
the term “Company” shall include the Company, its parent and any of its
direct or indirect subsidiaries.
|
8. Inventions.
All
rights to discoveries, inventions, improvements and innovations (including
all
data and records pertaining thereto) directly related to the Company’s business,
whether or not patentable, copyrightable, registrable as a trademark, or reduced
to writing, that the Executive may discover, invent or originate during the
Term, either alone or with others and whether or not during working hours or
by
the use of the facilities of the Company (“Inventions”),
shall
be the exclusive property of the Company. The Executive shall promptly disclose
all Inventions to the Company, shall execute at the request of the Company
any
assignments or other documents the Company may deem necessary to protect or
perfect its rights therein, and shall assist the Company, at the Company’s
expense, in obtaining, defending and enforcing the Company’s rights therein. The
Executive hereby appoints the Company as his attorney-in-fact to execute on
his
behalf any assignments or other documents deemed necessary by the Company to
protect or perfect its rights to any Inventions.
9. Non-Disparagement.
Each
of
the parties agrees that, during and following the Term, he or it will not
disparage or denigrate to any person any aspect of his or its past relationship
with the other, nor the character of the other or the other’s agents,
affiliates, representatives, products, or operating methods, whether past,
present, or future.
6
10. Injunctive
Relief.
It
is
recognized and acknowledged by the Executive that a breach of the covenants
contained in Sections
6, 7, 8 and 9
will
cause irreparable damage to Company and its goodwill, the exact amount of which
will be difficult or impossible to ascertain, and that the remedies at law
for
any such breach will be inadequate. Accordingly, the Executive agrees that
in
the event of a breach of any of the covenants contained in Sections
6, 7, 8 and 9,
in
addition to any other remedy which may be available at law or in equity, the
Company will be entitled to specific performance and injunctive
relief.
11. Assignment
and Successors.
The
Company may assign its rights and obligations under this Agreement to any
entity, including any successor to all or substantially all the assets of the
Company, by merger or otherwise, and may assign or encumber this Agreement
and
its rights hereunder as security for indebtedness of the Company and its
affiliates, provided said successor entity assumes all of the obligations of
the
Company hereunder. The Executive may not assign his rights or obligations under
this Agreement to any individual or entity, except his estate upon his death.
This Agreement shall be binding upon and inure to the benefit of the Company,
the Executive and their respective successors, assigns, personnel and legal
representatives, executors, administrators, heirs, distributees, devisees,
and
legatees, as applicable.
12. Governing
Law.
This
Agreement shall be governed, construed, interpreted and enforced in accordance
with the substantive laws of the state of New York, without reference to the
principles of conflicts of law of New York or any other jurisdiction, and where
applicable, the laws of the United States.
13. Notices.
Any
notice, request, claim, demand, document and other communication hereunder
to
any party shall be effective upon receipt (or refusal of receipt) and shall
be
in writing and delivered personally or sent by telex, telecopy, overnight
courier service or certified or registered mail, postage prepaid, as
follows:
| (a) |
If
to the Company:
|
Envirosafe
Corporation
Fax:
Attn:
Secretary
and
a
copy to:
Lia
Law
LLP
Two
Xxxxxxxxx Xxxxx
Xxxxxxxxx,
XX 00000
Fax:
(000) 000-0000
Attn:
Xxx
Xxxxxxx, Esq.
| (b) |
If
to the Executive:
|
Xxxxx
Xxxxxx
00000
Xxxxxxx Xxxxxx Xxx
Xxxxxxxxxx,
Xxxxxxxx
00000
or
at any
other address as any party shall have specified by notice in writing to the
other party.
7
14. Counterparts.
This
Agreement may be executed in several counterparts, each of which shall be deemed
to be an original, but all of which together will constitute one and the same
Agreement.
15. Entire
Agreement.
The
terms
of this Agreement and the other agreements and instruments contemplated hereby
or referred to herein (collectively the “Related
Agreements”)
are
intended by the parties to be the final expression of their agreement with
respect to the employment of the Executive by the Company and may not be
contradicted by evidence of any prior or contemporaneous agreement. The parties
further intend that this Agreement and the Related Agreements shall constitute
the complete and exclusive statement of their terms and that except as required
by applicable law no extrinsic evidence whatsoever may be introduced in any
judicial, administrative, or other legal proceeding to vary the terms of this
Agreement and the Related Agreements.
16. Amendments;
Waivers.
This
Agreement may not be modified, amended, or terminated except by an instrument
in
writing, signed by the Executive and a duly authorized officer of Company.
By an
instrument in writing similarly executed, the Executive or a duly authorized
officer of the Company may waive compliance by the other party or parties with
any provision of this Agreement that such other party was or is obligated to
comply with or perform, provided,
however,
that
such waiver shall not operate as a waiver of, or estoppel with respect to,
any
other or subsequent failure. No failure to exercise and no delay in exercising
any right, remedy, or power hereunder preclude any other or further exercise
of
any other right, remedy, or power provided herein or by law or in
equity.
17. No
Inconsistent
Actions.
The
parties hereto shall not voluntarily undertake or fail to undertake any action
or course of action inconsistent with the provisions or essential intent of
this
Agreement. Furthermore, it is the intent of the parties hereto to act in a
fair
and reasonable manner with respect to the interpretation and application of
the
provisions of this Agreement.
18. Construction.
This
Agreement shall be deemed drafted equally by both the parties. Its language
shall be construed as a whole and according to its fair meaning. Any presumption
or principle that the language is to be construed against any party shall not
apply. The headings in this Agreement are only for convenience and are not
intended to affect construction or interpretation. Any references to paragraphs,
subparagraphs, sections or subsections are to those parts of this Agreement,
unless the context clearly indicates to the contrary. Also, unless the context
clearly indicates to the contrary, (a) the plural includes the singular and
the
singular includes the plural; (b) “and” and “or” are each used both
conjunctively and disjunctively; (c) “any,” “all,” “each,” or “every” means “any
and all,” and “each and every”; (d) “includes” and “including” are each “without
limitation”; (e) “herein,” “hereof,” “hereunder” and other similar compounds of
the word “here” refer to the entire Agreement and not to any particular
paragraph, subparagraph, section or subsection; and (f) all pronouns and any
variations thereof shall be deemed to refer to the masculine, feminine, neuter,
singular or plural as the identity of the entities or persons referred to may
require.
8
19. Arbitration.
Any
dispute or controversy arising under or in connection with this Agreement shall
be settled exclusively by arbitration, conducted before an arbitrator in New
York, New York in accordance with the employment rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitration award in any court having jurisdiction, provided,
however,
that
the Company shall be entitled to seek a restraining order or injunction in
any
court of competent jurisdiction to prevent any continuation of any violation
of
the provisions of Sections
6, 7, 8 or 9
of the
Agreement and the Executive hereby consents that such restraining order or
injunction may be granted without requiring the Company to post a bond. Only
individuals who are (i) lawyers engaged in the practice of law; and (ii) on
the
AAA register of arbitrators shall be selected as an arbitrator. Within 20 days
of the closure of the arbitration record, the arbitrator shall prepare written
findings of fact and conclusions of law. It is mutually agreed that the written
decision of the arbitrator shall be valid, binding, final and non-appealable,
provided however, that the parties hereto agree that the arbitrator shall not
be
empowered to award punitive damages against any party to such arbitration.
The
arbitrator shall require the non-prevailing party to pay the arbitrator’s full
fees and expenses or, if in the arbitrator’s opinion there is no prevailing
party, the arbitrator’s fees and expenses will be borne equally by the parties
thereto. In the event action is brought to enforce the provisions of this
Agreement pursuant to this Section
19,
the
non-prevailing parties shall be required to pay the reasonable attorney’s fees
and expenses of the prevailing parties to the extent determined to be
appropriate by the arbitrator, acting in its sole discretion.
20. Validity;
Enforcement.
If
any
provision of this Agreement is held to be illegal, invalid or unenforceable
under present or future laws effective during the term of this Agreement, such
provision shall be fully severable; this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a portion of this Agreement; and the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by
the
illegal, invalid or unenforceable provision or by its severance from this
Agreement. Furthermore, in lieu of such illegal, invalid or unenforceable
provision there shall be added automatically as part of this Agreement a
provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and enforceable.
21. Withholding.
The
Company shall be entitled to withhold from any amounts payable under this
Agreement any federal, state, local or foreign withholding or other taxes or
charges which the Company is required to withhold. The Company shall be entitled
to rely on an opinion of counsel if any questions as to the amount or
requirement of withholding shall arise.
22. Sole
Employment Agreement.
The
Executive acknowledges and agrees that he has taken all actions required under
the terms of any prior employment in order to terminate that employment and
that
the provisions contained in that employment agreement, if any, do not bind
the
Company.
23. Employee
Acknowledgement.
The
Executive acknowledges that he has read and understands this Agreement, is
fully
aware of its legal effect, has not acted in reliance upon any representations
or
promises made by the Company other than those contained in writing herein,
and
has entered into this Agreement freely based on his own judgment.
9
IN
WITNESS
WHEREOF, the parties have executed this Agreement on the date and year first
above written.
COMPANY
By:
________________________
Name:
Xxxxx Xxxxxx
Title:
Chairman
EXECUTIVE
By:
________________________
Name:
Xxxxx Xxxxxx
10
