EX-10.04 EMPLOYMENT AGREEMENT - Felitsky
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered
into this First day of August, 2001, by and between FIBR-PLAST CORP., an
Oklahoma corporation (the "COMPANY") and XXXX X. XXXXXXXX ("EXECUTIVE").
W I T N E S S E T H:
WHEREAS, the COMPANY desires to employ the EXECUTIVE on the terms and
conditions hereinbelow set forth;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of such is hereby acknowledged by the EXECUTIVE and
the COMPANY, the COMPANY and EXECUTIVE hereby agree as follows:
1. EMPLOYMENT.
(a) AGREEMENT TO EMPLOY. Upon the terms and subject to
the conditions of this Agreement, the COMPANY shall
employ EXECUTIVE, and EXECUTIVE hereby agrees to
accept employment by the COMPANY.
(b) TERM OF EMPLOYMENT. Unless terminated as provided in
Paragraph 5.(a) hereof, the COMPANY shall employ
EXECUTIVE pursuant to the terms of this Agreement for
the period commencing on the date hereof (the
"Commencement Date") and ending three years
thereafter. The period during which EXECUTIVE remains
employed by the COMPANY pursuant to this Agreement (as
same may be amended or modified from time to time in
accordance herewith) shall be referred to as the
"Employment Period."
2. POSITION AND DUTIES. During the Employment Period, the
EXECUTIVE shall serve as Senior Vice-President of the COMPANY
and shall have the duties, responsibilities and obligations
customarily assigned to individuals serving as Senior Vice-
President of comparable companies and such other duties,
responsibilities and obligations not inconsistent with the
position of EXECUTIVE with the COMPANY as may be specified by
the Board of Directors of the COMPANY (the "Board") from time
to time. The EXECUTIVE shall devote at least 90% of his time
to the services required of the EXECUTIVE hereunder, except
for vacation time and authorized periods of absence due to
sickness, personal injury or other disability, and the
EXECUTIVE shall use the EXECUTIVE'S best efforts, judgment,
skill and energy to perform such services in a manner
consonant with the duties of the EXECUTIVE'S position and to
improve and advance the business and interests of COMPANY.
EXECUTIVE represents that EXECUTIVE'S employment hereunder and
compliance by EXECUTIVE with the terms and conditions of this
Agreement shall not conflict with or result in the breach of
any agreement to which EXECUTIVE is a party or by which
EXECUTIVE may be bound. Notwithstanding anything in this
Employment Agreement to the contrary, the term"COMPANY" as
used in this Paragraph 2 shall refer to FIBR-PLAST CORP., an
Oklahoma corporation, and any subsidiaries thereof which now
exist or may exist during the Employment Period.
3. COMPENSATION.
(a) BASE SALARY. During the Employment Period, the
COMPANY shall pay the EXECUTIVE a base salary at the annual
rate of $52,000. Subsequent to one year from the date hereof,
such salary may be increased only by the unanimous consent of
a Compensation Committee of the COMPANY'S Board of Directors
(the "Compensation Committee"), provided that not less than
two thirds of the members of such Committee consist of persons
who are neither (i) otherwise affiliated with the COMPANY or
(ii) related to the EXECUTIVE by blood, marriage or adoption.
EXECUTIVE'S annual base salary payable hereunder is referred
to herein as "Base Salary." The COMPANY shall pay EXECUTIVE'S
Base Salary in equal weekly installments or in such other
installments upon which the EXECUTIVE and the COMPANY may
agree.
(b) STOCK. As additional compensation to EXECUTIVE for
signing this agreement and agreeing to its terms and
conditions in full, the COMPANY will allow EXECUTIVE to
purchase 140,000 shares of common stock of the COMPANY for
.00002, par value.
(c) STOCK OPTIONS. As additional compensation to
EXECUTIVE for continuing compliance with the terms and
conditions contained herein, the COMPANY will allow the
EXECUTIVE to purchase additional shares of the common stock of
the COMPANY for .00002, par value, in the following manner;
1. 500,000 on or after June 30, 2002, and
2. 500,000 on or after December 31, 2002, and
3. 500,000 on or after June 30, 2003, and
4. All options not exercised and purchased will
expire 12 months after June 30, 2003.
(d) ANNUAL INCENTIVE COMPENSATION. Upon the unanimous
consent of the Compensation Committee which shall be composed
of members as described in Paragraph 3.(a) above, the
EXECUTIVE shall be entitled to receive an annual bonus in a
maximum amount of 25% of the COMPANY'S net income for each
year during the Employment Period. For purposes hereof, net
income shall be computed in accordance with generally accepted
accounting principals, consistently applied.
4. BENEFITS AND EXPENSES.
(a) BENEFITS. During the Employment Period, the EXECUTIVE
shall be eligible to participate in each pension,
deferred compensation or welfare benefit plan
sponsored or maintained from time to time by the
COMPANY, if any, including without limitation each
profit sharing, retirement or savings plan or program,
and each group life, hospitalization, medical, dental,
health, accident or disability insurance or similar
plan or program of the COMPANY, in each case, whether
now existing or established hereafter, to the extent
that the EXECUTIVE is eligible to participate in any
such plan or program in accordance with the COMPANY'S
policies applicable to employees and the generally
applicable provisions of such plans and programs.
Notwithstanding the foregoing, the EXECUTIVE and his
family shall also be entitled to continue to
participate in the insurance policies that are now
being paid for by the COMPANY and the EXECUTIVE shall
be eligible to participate in comparable policies
during the Employment Period.
(b) VACATIONS. During the Employment Period, EXECUTIVE
shall be entitled to up to four weeks of paid vacation
annually and shall also be entitled to receive such
perquisites as may be provided by the COMPANY in
accordance with the then current policies and
practices of the COMPANY.
(c) BUSINESS EXPENSES. During the Employment Period, the
COMPANY shall pay or reimburse the EXECUTIVE for all
authorized expenses incurred or paid by the EXECUTIVE
in the performance of the EXECUTIVE duties hereunder,
including the use of a cellular telephone, upon
presentation of expense statements or vouchers and
such other information as the COMPANY may require and
in accordance with the generally applicable policies
and procedures of the COMPANY.
(d) AUTOMOBILE. The COMPANY shall provide the EXECUTIVE
with the use of, and insurance on, a leased
automobile.
5. TERMINATION OF EMPLOYMENT.
(a) EARLY TERMINATION OF THE EMPLOYMENT AGREEMENT.
Notwithstanding the provisions of Paragraph1.(b)
hereof, the Employment Period shall end upon the
earliest to occur of:
(1) the EXECUTIVE'S death; or
(2) Termination Due to Disability; or
(3) Termination for Cause
(b) DEFINITIONS. For the purposes of Paragraph 5 of this
Agreement, capitalized terms shall have the following
meanings:
(1) "Termination for Cause" means a termination of
the EXECUTIVE'S employment by COMPANY due to:
(A) the EXECUTIVE'S conviction of a felony
or the entering by the EXECUTIVE of a
plea of nolo contendere to a felony;
(B) the EXECUTIVE'S gross negligence,
dishonesty, malfeasance or misconduct
in connection with the EXECUTIVE'S
employment hereunder;
(C) Refusal by the EXECUTIVE, in breach of
this Agreement, to perform the duties,
responsibilities or obligations
assigned to the EXECUTIVE pursuant to
the terms hereof;
(D) Any intentional violation by the
EXECUTIVE of any federal or state law,
rule or regulation applicable to the
COMPANY under circumstances in which a
determination is made by the COMPANY,
in the exercise of the reasonable
judgement of the COMPANY, that such
violation will have a material adverse
affect upon the business or reputation
of the COMPANY; or
(E) Any breach by the EXECUTIVE of any
covenant contained in Paragraph6 of
this Agreement.
(2) "Termination Due to Disability" means a
termination of the EXECUTIVE'S employment by
COMPANY because the EXECUTIVE has been
incapable of fulfilling the positions, duties,
responsibilities and obligations set forth in
this Agreement because of physical, mental or
emotional incapacity resulting from injury,
sickness or disease for a period of: (A) at
least three consecutive months; or (B) more
than 120 days in any twelve month period. Any
question as to the existence, extent or
potentiality of the EXECUTIVE'S disability
upon which the EXECUTIVE and COMPANY cannot
agree shall be determined by a qualified,
independent physician selected by the COMPANY
and acceptable to both the COMPANY and the
EXECUTIVE or, in the event of the EXECUTIVE'S
mental or emotional incapacity, the
EXECUTIVE'S legal representative. The
determination of any such physician shall be
final and conclusive for all purposes of this
Agreement.
6. NONCOMPETITION AND CONFIDENTIALITY.
(a) NONCOMPETITION. During the Employment Period and
during the twelve month period following the
Employment Period (the "Restriction Period"), the
EXECUTIVE shall not become associated with any entity,
whether as a principal, partner, employee, consultant
or shareholder (other than as a holder of not in
excess of five percent of the outstanding voting
shares of any publicly traded COMPANY), that is in
direct competition with COMPANY in any area of the
United States.
(b) CONFIDENTIALITY. Without the prior written consent of
the COMPANY, other than as shall be necessary or
advisable in the ordinary course of the COMPANY'S
business, except to the extent required by an order of
a court having competent jurisdiction or under
subpoena from an appropriate governmental agency, the
EXECUTIVE shall not disclose any trade secrets,
customer lists, drawings, designs, information
regarding product development, marketing plans, sales
plans, manufacturing plans, management organization
information (including data and other information
relating to members of management), operating policies
or manuals, business plans, financial records,
packaging design or other financial, commercial,
business or technical information relating to the
COMPANY or information designated as confidential or
proprietary that the COMPANY may receive belonging to
suppliers, customers or others who do business with
the COMPANY (collectively "Confidential Information")
to any third person, unless such Confidential
Information has been previously disclosed to the
public by the COMPANY or is in the public domain
(other than by reason of the EXECUTIVE'S breach of
this Paragraph 6.(b). The provisions contained in
this paragraph shall not be construed to prohibit the
use by the EXECUTIVE of the EXECUTIVE'S knowledge,
experience and other business talents developed over
the years as an EXECUTIVE involved in business similar
to the business of the COMPANY.
(c) COMPANY PROPERTY. Promptly following the EXECUTIVE'S
termination of employment, the EXECUTIVE shall return
to the COMPANY all property of the COMPANY and all
copies thereof in the EXECUTIVE'S possession or under
the EXECUTIVE'S control, including without limitation
all Confidential Information, in whatever media.
(d) NON-SOLICITATION OF THE EXECUTIVE. During the
Employment Period and the Restriction Period, the
EXECUTIVE shall not, directly or indirectly, induce
any employee of the COMPANY to terminate employment
with COMPANY, and shall not, directly or indirectly,
either individually or as owner, agent, employee,
consultant or otherwise, employ or offer employment to
any person who is or was employed by the COMPANY,
unless such person shall have ceased to be employed by
COMPANY for a period of at least one year.
(e) INJUNCTIVE RELIEF WITH RESPECT TO COVENANTS. The
EXECUTIVE acknowledges and agrees that the covenants
and obligations of the EXECUTIVE with respect to
noncompetition, nonsolicitation, confidentiality and
the COMPANY'S property relate to special, unique and
extraordinary matters and that a violation of any of
the terms of such covenants or obligations will cause
the COMPANY irreparable injury for which adequate
remedies may not be available at law. Therefore, the
EXECUTIVE agrees that the COMPANY shall be entitled to
an injunction, restraining order or other equitable
relief (without the requirement to post bond therefor)
restraining the EXECUTIVE from committing any
violation of the covenants or obligations contained in
this Paragraph6. These injunctive remedies are
cumulative and are in addition to any other rights and
remedies COMPANY may have at law or in equity. In
connection with the foregoing provisions of this
Paragraph6, the EXECUTIVE represents that the
EXECUTIVE'S economic means and circumstances are such
that such provisions will not prevent the EXECUTIVE
from providing for the EXECUTIVE and the EXECUTIVE'S
family on a basis satisfactory to the EXECUTIVE.
7. MISCELLANEOUS.
(a) SURVIVAL. The provisions of Paragraphs5, 6 and 7.(l)
of this Agreement shall survive the termination
hereof, whether such termination shall be by
expiration of the Employment Period on the last day
thereof specified in Paragraph1.(b) or by early
termination of the Employment Period pursuant to
Paragraph5.
(b) BINDING EFFECT. This Agreement shall be binding upon
and shall inure to the benefit of the COMPANY and any
person or entity that succeeds to the interest of the
COMPANY (regardless of whether such succession occurs
by operation of law or otherwise). This Agreement
shall also inure to the benefit of the EXECUTIVE'S
heirs, executors, administrators and legal
representatives.
(c) ASSIGNMENT. Neither this Agreement nor any of the
rights or obligations hereunder shall be assigned or
delegated by either party hereto without the prior
written consent of the other party.
(d) ENTIRE AGREEMENT. This Agreement supersedes any and
all prior agreements between the parties hereto and
constitutes the entire agreement between the parties
hereto with respect to the matters referred to herein.
No other agreement relating to the terms of the
EXECUTIVE'S employment by the COMPANY, oral or
otherwise, shall be binding between the parties unless
it is in writing and signed by the party against whom
enforcement is sought. There are no promises,
representations, inducements or statements between the
parties relating to the terms of the EXECUTIVE'S
employment by the COMPANY, other than those that are
expressly contained herein.
(e) SEVERABILITY; REFORMATION. In the event that one or
more of the provisions of this Agreement shall become
invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining
provisions contained herein shall not be affected
thereby. In the event that any of the provisions of
Paragraphs6.(a) through 7.(d) are not enforceable in
accordance with the terms of those paragraphs,
respectively, the EXECUTIVE and the COMPANY agree that
such paragraph(s) shall be reformed to make such
paragraph(s) enforceable in a manner that provides the
COMPANY with the maximum rights permitted at law.
(f) WAIVER. Waiver by any party hereto of any breach or
default by the other party or any of the terms of this
Agreement shall not operate as a waiver of any other
breach or default, whether similar to or different
from the breach or default waived. No waiver of any
provision of this Agreement shall be implied from any
course of dealing between the parties hereto or from
any failure by either party hereto to assert such
party's rights hereunder on any occasion or series of
occasions.
(g) NOTICES. Any notice required or desired to be
delivered under this Agreement shall be made in
writing; shall be delivered by courier service, by
registered mail, return receipt requested, or by
facsimile; shall be effective upon such delivery by
the party to which such notice shall be directed; and
shall be addressed as follows (or to such other
address as the party entitled to notice shall
hereafter designate in accordance with the terms
hereof):
If to COMPANY: If to the EXECUTIVE:
FIBR-PLAST CORP. XXXX X. XXXXXXXX
0000 X. XXXXXXX, XXXXX 000 3225 X. XXXXXXX, SUITE 100
TULSA, OK. 74135 XXXXX, XX. 00000
(h) AMENDMENTS. This Agreement may not be altered,
modified or amended, except by a written instrument
signed by each of the parties hereto.
(i) HEADINGS. Headings to paragraphs in this Agreement
are for the convenience of the parties only and are
not intended to be part of or to affect the meaning or
interpretation hereof.
(j) COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an
original, but all of which together shall constitute
one and the same instrument.
(k) WITHHOLDING. Any payments provided for herein shall
be reduced by any amounts required to be withheld by
the COMPANY from time to time under applicable
federal, state or local income or employment tax laws
or similar statutes or other provisions of law then in
effect.
(l) GOVERNING LAW. This Agreement shall be governed by
the laws of the State of Oklahoma without reference to
principles or conflicts or choice of law under which
the law of any other jurisdiction would apply.
(m) VENUE. Any suit, action or proceeding with respect to
this Agreement shall be brought in the courts of Tulsa
County in the State of Oklahoma or in the U.S.
District Court for the Northern District of Oklahoma.
IN WITNESS WHEREOF, the COMPANY has caused this Agreement to be
executed by its duly authorized officer and the EXECUTIVE has hereunto set the
EXECUTIVE'S hand as of the day and year first above written.
FIBR-PLAST CORP.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
President
By: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
