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EXHIBIT 6(ii)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT dated October ____, 1999, by and between
Enviro-Clean of America, Inc., a Nevada corporation with offices at 000 Xxxx
Xxxxxx, Xxxxxxxxxx, Xxx Xxxx 00000 (hereinafter referred to as the "Company")
and Xxxxxxx X. Xxxxx, an individual residing at c/o 0000 Xxxxxxx Xxxxxx, Xxx
Xxxxxxx, Xxxxx 00000 (hereinafter referred to as the "Executive").
WHEREAS, the Executive is presently employed by the Company as the
President of the Company;
WHEREAS, the Board of Directors of the Company (the "Board") desires
to provide for the continued employment of the Executive, which the Board
believes is in the best interests of the Company and its shareholders, and the
Executive is willing to commit himself to serve the Company, on the terms and
conditions herein provided;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto hereby agree as follows:
1. Title: Capacity. The Executive shall serve as President of the
Company and shall be based at the Company's offices in San Antonio, Texas. The
Executive hereby accepts such employment and agrees to undertake the duties and
responsibilities inherent in such position and such other duties and
responsibilities as the Board or its designee shall from time to time
reasonably assign to him. The Executive agrees to abide by the rules,
regulations, instructions, personnel practices and policies of the Company and
any changes therein which may be adopted from time to time by the Company. The
Executive shall devote one hundred (100%) percent of his time to the business
of the Company.
The Company further agrees to use its best efforts to cause the
Executive to be nominated as a member of the board of directors.
2. Term of Employment. The Company agrees to employ the Executive, and
the Executive agrees to serve the Company for a period commencing on the date
hereof (the "Commencement Date") and continuing for three years thereafter
(such period, including all extensions thereto, to be collectively referred to
as the "Employment Period"), unless otherwise terminated pursuant to the terms
hereof. The Employment Period shall automatically renew for one year unless
prior to the end of the three-year term, or any renewal periods, either the
Company of the Executive provides notice to the other party to this Agreement
of its intention not to exceed the Employment Period beyond the then current
three-year term. Any notice given pursuant to this Section shall be provided in
accordance with the terms of Section 8.1 hereof and shall be provided not later
than 90 days prior to the end of such three-year term or one-year renewal
period, as the case may be.
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3. Compensation and Benefits.
3.1. Salary. The Company will compensate the Executive for
services to be rendered by the Executive hereunder at the per annum
rate of (i) fifty thousand ($50,000) dollars for the year ending
December 31, 199, (ii) one hundred and fifty thousand ($150,000)
dollars for the year ending December 31, 2000, and (iii) two hundred
and fifty thousand ($250,000) dollars for the year ending December 31,
2001, and for periods subsequent thereto (the "Base Compensation"),
payable in accordance with the Company's customary payroll practices.
Additionally, the Base Compensation may be increased annually as
determined by the Board of Directors of the Company.
3.2. Bonus and Fringe Benefits. In addition to the
compensation provided in Section 4(a) above, the Company agrees to pay
the Executive an annual bonus payment (the "Basic Bonus Payment") for
each of the fiscal years during the Employment Period equal to ten
thousand ($10,000) dollars upon the occurrence of each of the
following events: (a) listing of the Company's shares on NASDAQ, a
comparable inter-dealer automated quotation system, or a recognized
exchange, (b) the Company achieves revenues for any monthly period
that would, if annualized, equal $50 million or more in revenues, (c)
the Company achieves revenues for any monthly period that would, if
annualized, equal $75 million or more in revenues, (d) the Company
achieves revenues for any monthly period that would, if annualized,
equal $100 million or more in revenues. The term "Revenues" shall mean
the revenues of the Company for such month as determined by the
independent public accountants then employed by the Company.
3.3. Reimbursement of Expenses. The Company shall reimburse
the Executive for all reasonable travel, entertainment and other
expenses incurred or paid by the Executive in connection with, or
related to, the performance of his duties, responsibilities or
services under this Agreement, upon presentation by the Executive of
documentation, expense statements, vouchers and/or such other
supporting information as the Company may reasonably request,
provided, however, that the amount available for such travel,
entertainment and other expenses may be fixed in advance by the Board.
3.4. Insurance. The Executive shall be entitled to health
insurance coverage, term life insurance and long term disability
insurance to the extent that the Executive's position, tenure, salary,
age, health and other qualifications make him eligible to participate.
3.5. Vacation. The Executive shall be entitled to three weeks
paid vacation per year.
4. Employment Termination. The employment of the Executive by the
Company pursuant to this Agreement may be terminated under the following
circumstances:
4.1. Expiration of Term. Expiration of the Employment Period
in accordance with Section 2.
4.2. Death. Upon the death of the Executive.
4.3. Disability. If, as a result of the Executive's
incapacity due to physical or mental illness, the Executive shall have
failed to perform the services contemplated under this Agreement for a
period of 270 consecutive days, or a total of at least 300 calendar
days during any 365-day
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period, or a determination of disability shall have been made by a
physician satisfactory to both the Executive and the Company, provided
that if the Executive and the Company do not agree on a physician, the
Executive and the Company shall each select a physician and these two
together shall select a third physician whose determination as to
disability shall be binding on both parties.
4.4. Cause. The Company may terminate the Executive's
employment hereunder for Cause. For purposes of this Agreement, the
Company shall have "Cause" to terminate the Executive's employment
hereunder in the event:
(i) Executive shall have willfully failed and
continued to fail substantially to perform the duties (other
than any failure resulting from the Executive's incapacity
due to physical or mental illness or any actual or
anticipated failure after the issuance by him of a Notice of
Termination, as defined in Section 4.6), for 30 days after a
written demand for performance is delivered to the Executive
on behalf of the Company which specifically identifies the
manner in which it is alleged that the Executive has not
substantially performed his duties; provided that the
Company's economic performance or failure to meet any
specific projection shall not, in and of itself, constitute
"Cause"; or
(ii) the Executive shall have engaged in (A) any
material misappropriation of funds, properties or assets of
the Company, it being understood that "material" for these
purposes shall take into account both the amount of funds,
properties or assets misappropriated and the circumstances
thereof (including the intent of the Executive in connection
therewith) or (B) any malicious damage or destruction of any
property or assets of the Company, whether resulting from the
Executive's willful actions or omissions or the Executive's
gross negligence; or
(iii) the Executive shall (A) have been convicted of
a crime involving moral turpitude or constituting a felony or
(B) entered a plea of nolo contendere to any such crime,
either of which has had a material adverse effect upon the
business of the Company; or
(iv) the Executive shall have (A) materially
breached his obligations under Section 6 hereof or (B)
breached any of the other material provisions of this
Agreement and such breach shall remain uncured by the
Executive within 30 days following receipt of notice from the
Company specifying such breach.
4.5. Termination by the Executive. The Executive may
terminate his employment hereunder upon 90 days written notice.
4.6. Notice of Termination. Any termination of the
Executive's employment by the Company or by the Executive (other than
termination pursuant to Section 4.2) shall be communicated by Notice
of Termination to the other party hereto. For purposes of this
Agreement, a "Notice of Termination" shall mean a written notice which
shall indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and
circumstances which provide a basis for termination of the Executive's
employment under the provisions so indicated.
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4.7. Date of Termination. "Date of Termination" shall mean
(i) if the Executive's employment is terminated pursuant to Section
4.1, the date on which the Employment Period expires pursuant to
Section 2, (ii) if the Executive's employment is terminated pursuant
to Section 4.2, the date of the Executive's death, (iii) if the
Executive's employment is terminated pursuant to Section 4.3, 30 days
after the Notice of Termination is given (provided that the Executive
shall not have returned to the performance of his duties on a
full-time basis during such 30 day period), (iv) if the Executive's
employment is terminated pursuant to Section 4.4 or Section 4.5, the
date specified in the Notice of Termination, provided that in the case
of a Section 4.4 termination it is at least 30 days subsequent to the
date of the issuance of such Notice of Termination, and in the case of
a Section 4.5 termination, it is at least 90 days subsequent to the
date of the issuance of such Notice of Termination, and (v) if the
Executive's employment is terminated other than as provided herein,
the date specified in the Notice of Termination, provided that it is
at least 30 days subsequent to the date of the issuance of such Notice
of Termination.
5. Compensation Upon Termination.
5.1. If the Executive's employment is terminated under the
provisions of Section 4.1, 4.4 or Section 4.5, the Company shall pay
to the Executive his full salary, bonus and benefits through the Date
of Termination.
5.2. If the Executive's employment is terminated by the
Executive's death under the provisions of Section 4.2, the Company
shall pay to the Executive's estate the Executive's full salary, bonus
and benefits to the Executive through the Date of Termination.
5.3. If the Executive's employment is terminated under the
provisions of Section 4.3, the Company shall pay to the Executive his
full salary, bonus and benefits through the Date of Termination.
During any period that the Executive fails to perform his duties
hereunder as a result of disability (as defined in Section 4.3), the
Executive shall continue to receive his full salary, bonus and
benefits through the Date of Termination.
5.4. If the Company shall terminate the Executive's
employment other than as provided herein or the Executive shall
terminate his employment pursuant to Section 4.5, then the Company
shall pay the Executive his fully salary, bonus and benefits through
the Date of Termination, and the Company shall thereafter have no
further obligation whatsoever to Executive
6. Proprietary Information and Developments.
6.1. Proprietary Information.
(i) The Executive agrees that all information and
know how, whether or not in writing, of a private, secret or
confidential nature concerning the Company's business or
financial affairs (collectively, "Proprietary Information")
is and shall be the exclusive property of the Company. The
Executive will not disclose any Proprietary Information to
others outside the Company or use the same for any
unauthorized purposes without written approval by the Board,
either during or after his employment, unless and until
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such Proprietary Information has become public knowledge
without fault by the Executive.
(ii) The Executive agrees that all files, letters,
memoranda, reports, records, data, sketches, drawings, or
other written, photographic, or other tangible material
containing Proprietary Information, whether created by the
Executive or others, which shall come into his custody or
possession, shall be and are the exclusive property of the
Company to be used by the Executive only in the performance
of his duties for the Company.
(iii) The Executive agrees that his obligation not
to disclose or use information, know-how and records of the
types set forth in subsection (i) and (ii) above, also
extends to such types of information, know-how, records, and
tangible property of third parties who may have disclosed or
entrusted the same to the Company or to the Executive in the
course of the Company's business.
6.2. Other Agreements. Executive represents and warrants that
he is not a party to any other employment or other agreement which
would cause him to violate the terms of this agreement or such other
agreements.
7. Non-Competition, Non-Solicitation.
7.1. Non-solicitation of Employees. The Executive agrees that
during the term of the Executive's employment with the Company and for
two years thereafter, the Executive shall not directly recruit,
solicit or otherwise induce or attempt to induce any employees of the
Company to leave the employment of the Company.
7.2. Non-competition. The Executive agrees that during the
term of the Executive's employment with the Company and for one year
thereafter, the Executive shall not directly or indirectly, except as
a passive investor in publicly held companies and except for
investments held at the date hereof, engage in competition with the
Company or any of its subsidiaries, or own or control any interest in,
or act as director, officer or employee of, or consultant to, any
firm, corporation or institution directly engaged in competition with
the Company or any of its subsidiaries; provided the Company or one of
its subsidiaries are actively engaged in such business at the time the
Executive's employment by the Company is terminated.
8. Miscellaneous.
8.1. Notices. All notices required or permitted under this
Agreement shall be in writing and shall be deemed effective upon
personal delivery or upon deposit in the United States Post Office, by
registered or certified mail, postage prepaid, addressed to the other
party at the address shown above, or at such other address or
addresses as either party shall designate to the other in accordance
with this Section 8.1.
8.2. Pronouns. Whenever the context may require, any pronouns
used in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular forms of nouns and pronouns
shall include the plural, and vice versa.
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8.3. Entire Agreement. This Agreement constitutes the entire
agreement between the parties and supersedes all prior agreements and
understandings, whether written or oral, relating to the subject
matter of this Agreement.
8.4. Amendment. This Agreement may be amended or modified
only by a written instrument executed by both the Company and the
Executive.
8.5. Governing Law. This Agreement shall be construed,
interpreted and enforced in accordance with the substantive laws of
the State of New York. Any dispute, claim, or controversy arising
between the parties shall be submitted and subject to the exclusive
jurisdiction of the Supreme Court of the State of New York, Nassau
County, or the Xxxxxxx Xxxxxxxx Xxxxx, Xxxxxxx Xxxxxxxx, Xxx Xxxx.
8.6. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of both parties and their respective
successors and assigns, including any corporation with which or into
which the Company may be merged or which may succeed to its assets or
business, provided, however, that the obligations of the Executive are
personal and shall not be assigned by him.
8.7. Waivers. No delay or omission by the Company in
exercising any right under this Agreement shall operate as a waiver of
that or any other right. A waiver or consent given by the Company on
any one occasion shall be effective only in that instance and shall
not be construed as a bar or waiver of any right on any other
occasion.
8.8. Captions. The captions of the sections of this Agreement
are for inconvenience of reference only and in no way define, limit or
affect the scope or substance of any section of this Agreement.
8.9. Severability. In case any provision of this Agreement
shall be invalid, illegal or otherwise unenforceable, the validity,
legality and enforceability of the remaining provisions shall in no
way be affected or impaired thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year set forth above.
ENVIRO-CLEAN OF AMERICA, INC.
By:
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Title:
EXECUTIVE:
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XXXXXXX X. XXXXX
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