1
Exhibit 10.3
EMPLOYMENT AGREEMENT, dated as of
January __, 1997, by and between
CONSERVER CORPORATION OF AMERICA, a
Delaware Corporation (the "Company"),
and XXXXXXX X. XXXXX (the "Employee").
The parties hereto desire to provide for the Employee's employment
by the Company in accordance with the terms and provisions set forth below.
NOW, THEREFORE, the parties agree as follows:
1. EMPLOYMENT; TERM.
The Company will employ the Employee in its business and the
Employee will work for the Company, as its President and Chief Executive
officer, for a term of three (3) years commencing on January ___, 1997 and
ending on _____________, 2000, unless sooner terminated in accordance with
Section 9 hereof. Such period, together with the period of any extension or
renewal of such employment, is referred to herein as the "Employment Period."
2. DUTIES.
During the Employment Period, the Employee shall serve as the
Company's President and Chief Executive Officer, and perform duties of an
executive character consisting of administrative and managerial responsibilities
on behalf of the Company and such further duties as shall, from time to time, be
reasonably delegated or assigned to the Employee by the Board of Directors of
the Company consistent with his abilities.
3. DEVOTION OF TIME.
During the Employment Period, the Employee shall: (i) expend
substantially all of his working time for the Company; (ii) devote his best
efforts, energy and skill to the services of the Company and the promotion of
its interests; and (iii) not take part in activities known by Employee to be
detrimental to the best interests of the Company.
2
4. COMPENSATION.
4.1 In consideration for the services to be performed by the
Employee during the Employment Period hereunder, the Company shall compensate
the Employee at the minimum rate of $125,000 per annum, payable in accordance
with the Company's customary payroll practices.
4.2 Employee may also be entitled to such additional
increments and bonuses as may be determined from time to time by the Company's
Board of Directors in its sole and absolute discretion.
5. USE OF AUTOMOBILE; REIMBURSEMENT OF EXPENSES;
ADDITIONAL BENEFITS.
5.1 Employee shall receive an automobile allowance for the use
of an automobile owned or leased by him in accordance with the Company's then
prevalent practices for executive employees.
5.2 The Company shall pay directly, or reimburse the Employee
for, all other reasonable and necessary expenses and disbursements incurred by
him for and on behalf of the Company in the performance of his duties under this
Agreement. For such purposes, the Employee shall submit to the Company itemized
reports of such expenses in accordance with the Company's policies.
5.3 Employee shall be entitled to paid vacations during the
Employment Period in accordance with the Company's then prevalent practices for
executive employees; provided, however, that Employee shall be entitled to such
paid vacations for not less than two (2) weeks per annum.
5.4 Employee shall be entitled to participate in, and to
receive benefits under, any such employee benefit plans of the Company
(including, without limitation, pension, profit sharing, bonus, group life
insurance and group medical insurance plans) as may exist from time to time for
its executive employees.
6. TRADE SECRETS.
6.1 Employee expressly agrees and understands that the Company
owns and/or controls numerous methods, products, processes, customer lists,
trade secrets and other information applicable to its business and that it may
from time to time acquire, improve or produce additional methods, products,
processes, customer lists, trade secrets and other information (collectively,
the "Confidential Information"). Employee hereby acknowledges that each element
of the Confidential Information
2
3
constitutes a unique and valuable asset of the Company, and that certain items
of the Confidential Information have been acquired from third parties upon the
express condition that such items will not be disclosed other than to the
Company in the ordinary course of its business.
6.2 Employee hereby acknowledges that disclosure of the
Confidential Information to and/or use by anyone other than in the Company's
ordinary course of business would result in irreparable and continuing damage
to the Company. Accordingly, the Employee agrees to hold the Confidential
Information in the strictest secrecy, and covenants that, during the Employment
Period or any time thereafter, he will not, without the prior written consent of
the Board of Directors, directly or indirectly, allow any element of the
Confidential Information to be disclosed, published or used, nor permit the
Confidential Information to be discussed, published or used, either by himself
or any third parties, except in effecting the Employee's duties on behalf of the
Company in the ordinary course of business. Notwithstanding anything to the
contrary herein contained, Employee's obligation to maintain the secrecy and
confidentiality of the Confidential Information under this Section 6 shall not
apply to any such Confidential Information which is disclosed through any means
other than as a result of any act by Employee constituting a breach of this
Agreement or which is required to be disclosed under applicable law.
7. EMPLOYEE KNOWLEDGE.
7.1 Employee hereby agrees to communicate and make known to
the Company all knowledge possessed by him relating to any methods,
developments, inventions and/or improvements, whether patented, patentable or
unpatentable, which relate to the business of the Company; whether acquired by
him before or during the Employment Period; provided, however, that nothing
herein shall be construed as requiring any such communication where the method,
development, invention and/or improvement is lawfully protected from disclosure
as the trade secret of a third party or by any other lawful bar to such
communications existing prior to the commencement of employment hereunder.
7.2 Any methods, developments, inventions and/or improvements,
whether patentable or unpatentable, which Employee may conceive of or develop in
connection with the Company's business (solely or jointly with another or
others), while in its employ, shall be and remain the exclusive property of the
Company. Employee further agrees on request to execute patent applications, and
any other records or memoranda requested by the Company, based on such methods,
developments, inventions and/or improvements, including instruments deemed
necessary by the Company for the
3
4
prosecution of the patent application or the acquisition of Letters of Patent of
this and any foreign country or otherwise.
7.3 Employee hereby agrees to keep all such records in
connection with the Employee's employment as the Company may from time to time
direct, and all such records shall be the sole and exclusive property of the
Company.
8. RESTRICTIVE COVENANT.
8.1 The services of the Employee are unique, extraordinary and
essential to the business of the Company, particularly in view of the Employee's
access to the Confidential Information. Accordingly, the Employee agrees that if
his employment hereunder shall at any time be terminated for any reason
whatsoever, the Employee will not at any time within three (3) years of such
termination, without the prior written approval of the Board of Directors,
directly or indirectly, engage in any business activity competitive with the
business of the Company. Furthermore, the Employee agrees that, during such
three-year period, he shall not solicit, directly or indirectly, any prospective
account of the Company who at the time of such termination was then actively
being solicited by the Company and he shall not in any manner, directly or
indirectly, affect to the Company's detriment any relationship of the Company
with any customer, supplier or employee of the Company or cause any customer or
supplier to refrain from entrusting additional business to the Company. In the
event that any of the provisions of this Section 8.1 shall be adjudicated to
exceed the time, geographic or other limitations permitted by applicable law in
any jurisdiction, then such provision shall be deemed reformed in any such
jurisdiction to the maximum time, geographic or other limitations permitted by
applicable law.
8.2 As used in Sections 6, 7 and 8 hereof, the term "Company"
shall mean and include any and all corporations affiliated with Conserver
Corporation of America which either now exist or which may hereafter be
organized.
9. EARLIER TERMINATION.
9.1 Employee's employment hereunder shall automatically be
terminated upon the death of the Employee or Employee's voluntarily leaving the
employ of the Company and, in addition, may be terminated, at the sole
discretion of the Company, as follows:
(a) upon thirty (30) days' prior written notice by the
Company, in the event of the Employee's disability as set
forth in Section 9.2 below; or
4
5
(b) upon thirty (30) days' prior written notice by the
Company, in the event that the Company terminates the
Employee's employment hereunder for cause as set forth in
Section 9.3 below.
9.2 Employee shall be deemed disabled hereunder if, in the
opinion of the Board of Directors of the Company, as confirmed by competent
medical advice, he shall become physically or mentally unable to perform his
duties for the Company hereunder and such incapacity shall have continued for
any period of six (6) consecutive months.
9.3 For purposes hereof, "cause" shall include, but not be
limited to, the following: (a) Employee's willful malfeasance or gross
negligence; (b) any material misrepresentation or concealment of a material fact
made by Employee in connection with this Agreement; or (c) the material breach
of any covenant made by Employee hereunder.
9.4 In the event that this Agreement shall be terminated due
to the Employee's death or disability, then the Company shall pay to the
Employee or his personal representatives, as the case may be, severance pay in a
lump sum amount equal to his compensation for a period of six months as set
forth in Sections 4.1 and 4.2 hereof. If, however, this Agreement shall be
terminated for any other reason whatsoever, then the Company shall not be
obligated to make any severance payments whatsoever to the Employee hereunder,
except for the compensation set forth in Sections 4.1 and 4.2 hereof which shall
have accrued but be unpaid at the effective time of termination.
10. INJUNCTIVE RELIEF.
Employee hereby acknowledges and agrees that, in the event he
shall violate any provisions of Sections 6, 7 and 8 hereof, the Company will be
without an adequate remedy at law and, accordingly, will be entitled to enforce
such restrictions by temporary or permanent injunctive or mandatory relief
obtained in any action or proceeding instituted in any court of competent
jurisdiction without the necessity of proving damages and without prejudice to
any other remedies which it may have at law or in equity.
11. SERVICE AS DIRECTOR.
During the Employment Period, the Employee shall, if elected
or appointed, serve as a Director of the Company and/or any subsidiary or
affiliate of the Company upon such terms as shall be mutually agreed upon by the
Employee and the Company.
5
6
12. ASSIGNMENT.
This Agreement, as it relates to the employment of the
Employee, is a personal contract and the rights and interests of the Employee
hereunder may not be sold, transferred, assigned, pledged or hypothecated,
except as set forth in this Section 12 hereof. Except as otherwise herein
expressly provided, this Agreement shall inure to the benefit of and be binding
upon the Company and its successors and assigns, including without limitation,
any corporation or other entity into which the Company is merged or which
acquires all of the outstanding shares of the Company's capital stock, or all
or substantially all of the assets of the Company.
13. RIGHT TO PAYMENTS.
Employee shall not under any circumstances have any option or
right to require payments hereunder otherwise than in accordance with the terms
hereof. To the extent permitted by law, the Employee shall not have any power of
anticipation, alienation or assignment of payments contemplated hereunder, and
all rights and benefits of the Employee shall be for the sole personal benefit
of the Employee, and no other person shall acquire any right, title or interest
hereunder by reason of any sale, assignment, transfer, claim or judgment or
bankruptcy proceedings against the Employee.
14. NOTICES.
Any notice required or permitted to be given pursuant to this
Agreement shall be deemed given three (3) business days after such notice is
mailed by certified mail, return receipt requested, addressed as follows: (i) if
to Employee, at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 100__,; and (ii) if to
the Company, at 0000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxxxx Xxxxxx, Xxxxxxx 00000, or
at such other address as any such party shall designate by written notice to the
other party.
15. GOVERNING LAW.
This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of New York, without giving
effect to principles of conflicts of law.
16. WAIVER.
The waiver by either party of a breach of any
6
7
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach. If any provision of this Agreement shall be held to be
invalid or unenforceable, such invalidity or unenforceability shall attach only
to such provision and not in any way affect or render invalid or unenforceable
any other provisions of this Agreement, and this Agreement shall be carried out
as if such invalid or unenforceable provision were not embodied therein.
17. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the
parties and there are no representations, warranties or commitments except as
set forth herein. This Agreement supersedes all prior and contemporaneous
agreements, understandings, negotiations and discussions, whether written or
oral, of the parties hereto relating to the transactions contemplated by this
Agreement; provided, however, that it is the intention of the parties hereto
that this Agreement shall be interpreted and applied in conjunction with the
terms of any option, warrant or other right now in existence or hereinafter
granted to the Employee to acquire shares of capital stock of the Company. In
the event of any conflict, however, the terms of this Agreement shall govern and
prevail. This Agreement may be amended only in writing executed by the parties
hereto affected by such amendment.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the day and year first above written.
CONSERVER CORPORATION OF AMERICA
By:____________________________________
_______________________________________
XXXXXXX X. XXXXX
7
