EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT made this 1st day of February, 2005, to be effective
as of FEBRUARY 1, 2005 (the "Effective Date"), by and between XXXXX XXXXX,
individually, whose address is 00 Xxxxx Xxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000
(hereinafter, at times, referred to as the "Executive"), and VERIDIUM
CORPORATION, a corporation of the State of Delaware, whose address is 0 Xxxxxx
Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 (hereinafter, at times, along with any
affiliated or related entities, referred to as "Veridium"). Veridium and
Executive shall hereinafter collectively, at times, be referred to as the
"Parties" or individually, at times, as a "Party" and this Employment Agreement
shall hereinafter, at times, be referred to as the "Agreement."
WHEREAS:
A. Veridium is an environmental services provider specializing in the
recycling and reuse of industrial hazardous waste that provides
transportation, storage, disposal, remediation and recycling services for
public and private sector clients (the "Business");
B. Veridium desires to obtain the services of Executive as its employee, in
the capacity of PRESIDENT AND CHIEF EXECUTIVE OFFICER of Veridium, and
Executive desires to provide services to Veridium as its employee, in such
capacities, and in accordance with the terms, conditions and covenants set
forth in this Agreement; and,
C. Veridium would not have provided Executive with the opportunities,
information and other benefits hereinafter described if Executive had not
agreed to provide full time and exclusive services relative to the Business
for Veridium as specified hereunder for the full term hereof and pursuant
to the terms, conditions and covenants of this Agreement.
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the premises
and the mutual covenants, agreements, representations and warranties contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto hereby agree as follows:
1. EMPLOYMENT
A. Employment. Veridium hereby hires and employs Executive to serve as
its President and Chief Executive Officer. Executive shall have those
duties and responsibilities as shall be determined, from time to time,
by Veridium's Board of Directors.
B. Acceptance. Executive hereby accepts its employment hereunder, subject
to all of the terms, conditions and covenants contained in this
Agreement.
C. Loyalty. Executive shall devote his full and exclusive time relative
to the Business, attention and best efforts to the performance of his
duties under this Agreement. During the term of his employment under
this Agreement, Executive shall not at any time or place or to any
extent whatsoever, either directly or indirectly, without the express
prior written consent of Veridium obtained in each instance,
voluntarily engage in any conduct, litigation, business practice,
governmental, regulatory or administrative agency's investigation or
dispute or in any activity whatsoever competitive with, adverse to or
detrimental to the business or affairs of Veridium, whether alone, as
a partner, or as a past or present officer, director, employee, agent,
member or shareholder or in any other capacity whatsoever, of any
company or other entity except under, and pursuant to, this Agreement,
and all fees, commissions, or other income attributable to Executive's
business services relative to the Business during the term of this
Agreement shall inure to and belong to and be the sole property of
Veridium, as the case may be, subject to the terms and conditions set
forth below.
Executive shall not act as an employee, consultant, independent
contractor or otherwise for any other person, corporation, LLC, LLP,
joint venture, partnership or other entity whatsoever nor conduct any
other business whatsoever during the term of this Agreement without
the express written consent of Veridium obtained in each instance in
advance except as provided herein. Notwithstanding the foregoing to
the contrary, nothing herein shall prevent Executive from being a
passive investor or receiving dividend or interest income or capital
gains from investments, all of which Veridium acknowledges it shall
have no entitlement to. Furthermore, Executive may serve as a member
of a board of directors or other organization(s) which do not compete
with Veridium and which do not pose any conflict of interest or
appearance of conflict of interest, and may participate in other
professional, civic, governmental organizations or activities which do
not materially affect Executive's ability to carry out its full time
duties hereunder. Any and all such activities shall be disclosed to
Veridium's Board of Directors, in advance, during the term of this
Agreement.
D. Location. Executive shall perform services for Veridium at its
location in Sandwich, Massachusetts or at such other locations as may
be mutually agreed upon by the Parties from time to time.
2. RESPONSIBILITIES OF EXECUTIVE
A. Best Efforts. Executive shall use his best efforts on a full time and
regular basis to perform those services which are customary and
consistent with Executive's role with Veridium, or as otherwise
directed by Veridium and assist Veridium in a diligent and aggressive
manner with the safe, compliant and cost-effective operation and
growth of Veridium and in obtaining new business, acquisition targets,
strategic alliances and other growth producing opportunities.
B. Cooperation and Conduct. Executive shall work with Veridium to assure
that he and all employees of Veridium at all times cooperate with
Veridium personnel, conduct themselves in a manner consistent with the
high image, reputation and credibility of Veridium and engage in no
activities which reflect adversely on Veridium.
C. Reports. Executive shall furnish Veridium, at intervals as reasonably
requested by Veridium, with all financial reports, budgets, forecasts,
and such other information regarding his business efforts on behalf of
Veridium under this Agreement as Veridium may request from time to
time.
D. Meetings. Executive shall attend any and all meetings and trade shows
as reasonably required by Veridium, at Veridium's expense.
E. Compliance with Laws. Executive shall comply with all applicable
federal, state and local laws and regulations in performing its
obligations hereunder.
F. Business Practices. Executive acknowledges Veridium's corporate policy
prohibiting its employees from receiving or offering any gifts,
rebates or other payments in connection with any Veridium related
business transaction or relationship, and hereby represents and
covenants that he has not made, and will not make, any such payment(s)
in connection with any Veridium related business transaction or
relationship and will notify Veridium immediately if any party
requests that any such prohibited payment be made.
3. SCOPE AND LIMITATIONS OF EXECUTIVE'S AUTHORITY
A. Trade Practices. At no time shall Executive make any false or
misleading representations or engage in any other unfair or deceptive
trade practices with respect to Veridium. Executive shall refrain from
communicating any representations, guarantees or warranties with
respect to Veridium, except such as are authorized expressly by
Veridium in writing or are set forth in Veridium's literature.
B. Relationship of the Parties. Executive acknowledges that he is being
engaged hereunder as a full time employee of Veridium. Executive shall
not engage in any other commercial venture during the term hereof
without Veridium's prior written consent. Subject to the exclusions
specifically set forth in Section 1 hereof, Executive further
acknowledges and agrees that all income or other earnings which accrue
to Executive from his business efforts relative to the Business on
behalf of Veridium during the term of this Agreement (and any
extension thereof) shall be the sole and exclusive property of
Veridium, except as may be otherwise agreed upon in writing.
4. COMPENSATION
A. Salary. The compensation to be paid by Veridium to Executive in
consideration for all services rendered hereunder shall be an annual
salary of ONE HUNDRED SIXTY FIVE THOUSAND ($165,000.00) DOLLARS, U.S.
currency. Said salary shall be payable as of the Effective Date. Such
salary shall be paid in accordance with Veridium's normal mode of
payment (i.e., weekly, bi-weekly) and shall be subject to all
applicable Federal and state withholdings. Any future increases in
Executive's salary shall be made in the sole discretion of Veridium's
Board of Directors.
B. Vacation. Executive shall be entitled to FOUR (4) WEEKS (TWENTY (20)
Working Days) of paid vacation hereunder, at times and for duration to
be discussed in advance and agreed upon by Veridium's Chief Executive
Officer.
C. Benefit Plans. Executive shall be entitled to participate in benefit
plans maintained by Employer, pursuant to the terms and conditions of
such plans, if any, if approved by the Board of Directors and
stockholders of Employer. At a minimum, such benefit plans shall be
the same as or similar to those provided to other executives of
Veridium.
D. Health Insurance. Executive shall be eligible for health insurance
benefits (for himself, his spouse and children) provided by Veridium
in accordance with the policy in place for Veridium, which may be
modified from time to time, in Veridium's sole and absolute
discretion.
E. Automobile Expense. During the term hereof (and any extension thereof
hereunder), Executive shall receive an automobile cash allowance of
$1,000 per month or such other or further amount as is agreed to by
the Parties.
F. Bonus. Executive's performance shall be reviewed hereunder not less
than annually and Veridium's Board of Directors may, but shall not be
required to, in its sole discretion, pay Executive a bonus based upon
Executive's performance hereunder.
5. EXECUTIVE'S BUSINESS EXPENSES
Executive shall be reimbursed for normal and necessary business expenses
incurred in connection with his business efforts on Veridium's behalf
hereunder. Said expenses shall be presented to Veridium in accordance with
its customary policy for approval and shall be promptly reimbursed.
6. TAXES
Veridium shall withhold all applicable employment taxes, including Federal
and state income taxes, Social Security and unemployment taxes, disability
or any similar taxes or other payments, with respect to amounts earned or
received by Executive hereunder.
7. COVENANTS
A. Confidential Information. Executive acknowledges that during the term
of this Agreement and otherwise during the course of performing
services for Veridium, Executive shall have access to certain written
and non-written information which Veridium considers confidential and
proprietary ("Confidential Information"). In consideration for
Executive being granted access to such Confidential Information and
for the other benefits hereunder, Executive hereby agrees that, during
the term of this Agreement and thereafter for a period of THREE (3)
YEARS, Executive shall keep secret and retain in strictest confidence,
and shall not, without the prior written consent of Veridium obtained
in each instance, furnish, make available or disclose to any third
party, or use for the benefit of himself or any third party, any
Confidential Information. As used in this Paragraph, "Confidential
Information" shall mean any information relating to the business or
affairs of Veridium which is not generally known to the public,
including, but not limited to, product or business plans, improvements
and developments, Veridium financial statements; customer and
potential customer identities; names and qualifications of Veridium
employees, suppliers; pricing methodologies and profit margins,
including information regarding competitive bids, business or
acquisition strategies, internal company and product methodologies and
analyses, inventions, copyrightable work or other proprietary
information used or developed by Veridium in connection with its
business, and the existence and terms of this Agreement.
Notwithstanding the foregoing, Confidential Information shall not
include any information, which is or becomes in the public domain
through no wrongful act on the part of Executive or its employees or
agents.
B. Non-Solicitation.
1) For a period of THREE (3) YEARS after the termination of
Executive's relationship with Veridium hereunder, without regard
to the manner and method of termination (other than the death of
Executive), he shall not, without the prior written consent of
the Veridium, which consent shall not be unreasonably withheld,
obtained in each instance, solicit business, accept business
from, or deal with any client, customer, supplier, vendor,
manufacturer, fulfillment company, distributor or other business
account (or prospective account which Veridium has in
development) of Veridium in the capacity of a salesman or in any
other capacity which could negatively impact Veridium's sales or
relationships with its customers, clients, vendors, suppliers,
manufacturers or other business relationships, nor shall he
solicit for employment any person who was or is an employee of
Veridium or any affiliated or related entity of Veridium at any
time prior to or during the term of this Agreement. If the scope
of the foregoing restriction is too broad to permit enforcement
thereof to its fullest extent, then, such restriction shall be
enforced to the maximum extent permitted by law, and Executive
hereby consents and agrees that such scope may be judicially
modified accordingly in any proceeding brought to enforce such
restriction. Nothing herein contained shall be deemed to prevent
Executive from accepting employment, whether full time or part
time with any company, entity, individual who was not a client of
Veridium at the time of termination or who is not in a consulting
business, as a member of such company's in-house staff.
2) Executive acknowledges and agrees that Veridium's remedy at law
for any breach of any obligations under this Paragraph would be
inadequate, and agrees and consents that temporary or permanent
injunctive relief (along with reasonable legal fees and costs
provided Veridium is the prevailing party) may be granted in any
proceeding that may be brought to enforce any provision of any
such Paragraph without the necessity of proof of actual damages.
C. Covenant Not To Compete.
1) Executive agrees that during the term of this Agreement, and for
a period of THREE (3) YEAR. following the termination of his
relationship with the Veridium hereunder, regardless of the
method or manner of such termination, unless such termination is
initiated by Veridium without cause, he shall not, either
individually or in partnership or in conjunction with any person
or persons, firm, association, syndicate, company, corporation or
other entity or enterprise, as a principal, agent, officer,
director, shareholder, member, employee, consultant, employee or
in any manner whatsoever, carry on or be engaged in or connected
with or interested in, advise, or permit his name or any part
thereof to be utilized, or be employed by any person or persons,
firm, association, syndicate, company, corporation or other
entity or enterprise engaged in or connected with or interested
in a business or venture which competes, in whole or in part,
with the Business wherever Veridium conducts operations.
Executive acknowledges that Veridium intends to conduct business
throughout the United States of America and therefore requires
the geographic breadth of the foregoing restriction. If the scope
of the foregoing restriction is too broad to permit enforcement
thereof to its fullest extent, then such restriction shall be
enforced to the maximum extent permitted by law, and Executive
hereby consents and agrees that such scope may be judicially
modified accordingly in any proceeding brought to enforce such
restriction. Nothing herein contained shall be deemed to prevent
Executive from accepting employment, whether full time or part
time with any company, entity, individual who was not a client of
Veridium at the time of termination or who is not in a consulting
business, as a member of such company's in-house staff.
2) Executive acknowledges and agrees that Veridium's remedy at law
for any breach of any of the obligations under this Paragraph
would be inadequate, and agrees and consents that temporary or
permanent injunctive relief (along with reasonable legal fees and
costs provided Veridium is the prevailing party) may be granted
in any proceeding that may be brought to enforce any provisions
of this Paragraph without the necessity of proof of actual
damages.
3) This Section 7(C) shall be void in the event Veridium fails to
satisfy its redemption obligations to Executive under their
various agreements relative to Veridium's acquisition of
EnviroSafe, Corp., from Executive.
8. DURATION OF AGREEMENT/TERMINATION/SURVIVAL
A. Duration. Except in the case of earlier termination, as hereinafter
specifically provided, the term (the "Employment Period") of this
Agreement shall be as of the date first above written (the effective
date hereof) through and including three (3) years from the date first
above written; provided, however, that after expiration of the
employment period, this Agreement and the Employment Period shall
automatically be renewed each February 1 for successive one-year terms
so that the remaining term of this Agreement and the Employment Period
shall continue to be one year at all times after expiration of the
employment period unless the Company or the Executive delivers written
notice to the other party at least sixty (60) days preceding the
expiration of the employment period or any one-year extension date of
the intention not to extend the term of this Agreement.
B. Termination. Either Executive or Veridium may terminate this Agreement
at will, with or without cause, at any time during the employment
period or any extension term (hereinafter referred to as the
"Termination Date"). If the termination is without cause, SIXTY (60)
DAYS advance written notice must be provided by the terminating Party
to the other Party. EACH PARTY ACKNOWLEDGES THAT SUCH TIME PERIOD IS
ADEQUATE TO ALLOW IT TO TAKE ALL ACTIONS REQUIRED TO ADJUST ITS
BUSINESS OPERATIONS IN ANTICIPATION OF TERMINATION. If the termination
is for cause, no advance notice shall be required, but may be provided
at the option of the terminating Party. "Cause" for purposes of this
paragraph shall include, but not necessarily be limited to, the
following:
1) In the case of termination by Executive, cause shall exist a) if
Veridium breaches any provision of this Agreement or any other
agreement to which Executive and Veridium are parties, or b)
assigns this Agreement to a parent, subsidiary or affiliated
firm, or to another entity in connection with the sale or other
transfer of all or substantially all of its business assets.
2) In the case of termination by Veridium, cause shall exist:
a) If Executive fails to satisfy any of his responsibilities
provided hereunder or otherwise breaches any provision of
this Agreement or any other agreement to which Executive and
Veridium are parties; or,
b) If Executive is unable, by reason of illness or disability
(for a period of time in excess of EIGHT (8) Weeks) to
perform any of his responsibilities hereunder, or,
c) If Executive acts in any way damaging or detrimental to the
business or business reputation of Veridium or in any manner
which Veridium believes, in its' sole and absolute
discretion, to be damaging or detrimental to or not in
compliance with the professional manner in which Veridium
conducts its business or otherwise based upon poor
performance hereunder as determined by Veridium's Board of
Directors.
3) Cause shall exist for termination by either Party if the other
Party assigns or attempts to assign this Agreement, except as
permitted hereunder, liquidates or terminates its business, is
adjudicated a bankrupt, makes an assignment for the benefit of
creditors, invokes the provisions of any law for the relief of
debtors, or files or has filed against it any similar proceeding,
commits any crime (felony or misdemeanor) or has any
investigation or other governmental inquiry brought against it.
4) If Veridium terminates Executive's employment hereunder without
cause, Executive shall be entitled all salary payable for the
balance of the employment period of this Agreement.
5) Should Veridium terminate Executive's employment hereunder with
cause, Executive shall be entitled to one (1) years salary as
severance; provided, however, that such payment shall not be due
to Executive in the event Executive is terminated for fraud or
willful misconduct.
6) If Executive terminates his employment hereunder without cause,
he shall forfeit any remaining salary then payable hereunder for
the remaining duration of the term of this Agreement but shall be
entitled to all compensation due him as of the date of
termination.
C. No Damages. THIS AGREEMENT IS EXECUTED BY BOTH VERIDIUM AND EXECUTIVE
WITH THE KNOWLEDGE THAT IT MAY BE TERMINATED OR NOT EXTENDED.
EXECUTIVE ACKNOWLEDGES THAT APART FROM THE TERMS OF THIS AGREEMENT,
VERIDIUM HAS MADE NO REPRESENTATION AS TO THE LENGTH OF TIME DURING
WHICH THIS AGREEMENT WILL REMAIN IN FORCE.
D. Survival. All representations, warranties, covenants and agreements
contained in this Agreement and in the Purchase Agreement, or in any
schedule, certificate, document or statement delivered pursuant
hereto, shall survive the termination of this Agreement and shall be
deemed to have been relied upon (and not be affected in any respect
by) the termination of this Agreement or the Closing under the
Purchase Agreement.
10. ASSIGNMENT
No Party may assign, transfer or sell all of any of its rights under this
Agreement (or delegate all or any of its obligations hereunder) without the
prior written consent of the other Party. Subject to these restrictions,
the provisions of this Agreement shall be binding upon and inure to the
benefit of the Parties, their successors and permitted assigns.
11. WAIVER
The waiver by either Party of any of its rights or any breaches of the
other Party under this Agreement must be in writing to be effective and any
such waiver in a particular instance shall not be construed as a waiver of
the same or different rights or breaches in subsequent instances. All
remedies, rights undertakings and obligations hereunder shall be
cumulative, and none shall operate as a limitation of any other.
12. NOTICES
All notices and demands of any kind which either Veridium or Executive may
be required or desire to serve upon the other under the terms of this
Agreement shall be in writing and shall be served by personal delivery, by
certified mail-return receipt requested or by commercial courier service,
at the addresses set forth in this Agreement or at such other addresses as
may be designated hereafter by the Parties in writing. If by personal
delivery or commercial courier, service shall be deemed complete upon the
delivery date. If by certified mail, service shall be deemed complete upon
the date of the mailing.
13. EXECUTION
This Agreement shall become effective only upon its execution by Executive
within or outside the State of New Jersey and its subsequent execution by
Veridium in the State of New Jersey, as of the Effective Date.
14. SEVERABILITY
In the event that any of the provisions of this Agreement or the
application of any such provisions to the Parties hereto with respect to
their obligations hereunder shall be held by a court of competent
jurisdiction to be unlawful or unenforceable, the remaining provisions of
this Agreement shall remain in full force and effect, and shall not be
affected, impaired or invalidated in any manner.
15. PARAGRAPH HEADINGS AND LANGUAGE INTERPRETATIONS
The paragraph headings contained herein are for reference only and shall
not be considered substantive provisions of this Agreement. The use of a
singular or plural form shall include the other form, and the use of a
masculine, feminine or neuter gender shall include the other genders, as
applicable.
16. ENTIRE AGREEMENT
This Agreement constitutes the final agreement between the Parties
pertaining in any manner to the subject matter hereof, and contains all of
the covenants and undertakings between the Parties with respect to said
subject matter. Each party to this Agreement acknowledges that no written
or oral representations, inducements, promises or agreements have been made
which are not embodied herein and the Parties will not rely on any future
oral representations, inducements, promises or agreements unless embodied
in a written amendment hereto. Any and all prior or contemporaneous,
written or oral agreements between the Parties pertaining in any manner to
the subject matter of this Agreement expressly are superseded and canceled
by this Agreement. Except as otherwise provided herein, this Agreement may
not be amended, modified or supplemented, except by a written instrument
signed by both parties hereto. IT IS THE INTENTION AND DESIRE OF THE
PARTIES THAT THE EXPRESS PROVISIONS OF THIS AGREEMENT NOT BE SUBJECT TO
VARIATION BY IMPLIED COVENANTS OF ANY KIND.
17. COUNTERPARTS
This Agreement may be executed in one (1) or more counterparts, each of
which will be deemed to be any original copy of this Agreement and all of
which, taken together, shall be deemed to constitute one(1) and the same
Agreement.
18. CONSENT TO JURISDICTION
Veridium and Executive hereby submit and consent to the exclusive venue and
jurisdiction of the Superior Court of the State of New Jersey, County of
Bergen, in respect of the interpretation and enforcement of the provisions
of this Agreement, and hereby waive and agree not to assert as a defense in
any action, suit or proceeding for the interpretation or enforcement of
this Agreement, that it is not subject thereto or that such action, suit or
proceeding may not be brought or is not maintainable in said courts or that
this Agreement may not be enforced in or by said courts or that its
property is exempt or immune from execution, that the suit, action or
proceeding is brought in an inconvenient forum, or that the venue of the
suit, action or proceeding is improper. Veridium and Executive agree that
service of process may be made in any manner permitted by the laws of the
State of New Jersey or the federal laws of the United States in any such
action, suit or proceeding against Veridium and Executive with respect to
this Agreement. Veridium and Executive agree that final judgment (with all
right of appeal having expired or been waived) against it in any such
action, suit or proceeding shall be conclusive and that the other Party is
entitled to enforce such judgment in any other jurisdiction by suit on the
judgment, a certified copy of which shall be conclusive evidence of the
fact and amount of indebtedness arising from such judgment.
19. THE PARTIES ACKNOWLEDGE THAT THEY HAVE EACH RECEIVED A COPY OF THIS
AGREEMENT, THAT THEY HAVE READ AND FULLY UNDERSTAND THIS AGREEMENT, AND
THAT THEY HAVE BEEN ADVISED TO SEEK AND HAVE SOUGHT OR WAIVED INDEPENDENT
LEGAL COUNSEL OF THEIR CHOICE TO AID IN THEIR UNDERSTANDING HEREOF.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
the day and year first appearing above by their duly authorized officers, as set
forth below.
VERIDIUM CORPORATION
By: /s/Xxxxxxx Xxxxx February 1, 2005
__________________________________ Dated: ____________________
Xxxxxxx Xxxxx
Chairman, Executive Compensation
Committee to Veridium's Board of Directors
EXECUTIVE
By: /s/Xxxxx Xxxxx February 1, 2005
__________________________________ Dated: ____________________
Xxxxx Xxxxx
Individually
