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EXHIBIT 6.8
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement" herein), made and entered into
effective the 1st day of January, 1996, by and between TOTAL BUILDING SYSTEMS,
INC. ("Employer" herein), a Texas corporation with its principal place of
business at 0000 Xxxxx Xxxxxxx Xxxxxxx Xxxx Xxxxxxx, Xxxxx 00000-0000, and
XXXXXXX X. XxXXXXX ("Employee" herein), whose address for purposes of this
instrument is 00000 Xxxx Xxxxx, Xxxxxxx, Xxxxx 00000; witnesseth that:
RECITALS
Whereas, Employer is engaged in the business of manufacturing and
marketing certain goods and services, and other related and unrelated
enterprises;
Whereas, Employee has been engaged and has had a great deal of
experience in the above-designated business;
Whereas, Employee is willing to be employed by Employer, and Employer
is willing to employ Employee, on the terms and conditions set forth herein;
NOW, THEREFORE, for and in consideration of the premises, and of the
mutual covenants and promises of the parties hereto, and of the mutual benefits
to the parties herefrom, the receipt and adequacy of which are hereby
acknowledged, Employer and Employee do hereby covenant and agree as follows:
I. EMPLOYMENT
1.1 Employer hereby employs, engages, and hires Employee as President
of Total Business Systems, Inc. to oversee the day to day operations of the
business, and Employee hereby accepts and agrees to such hiring, engagement, and
employment, subject to the general supervision and pursuant to the orders,
advice, and direction of the Board of Directors of Employer. There are no
formal, fixed hours of employment; rather, Employee is expected to work at such
times as the effective, efficient, and conscientious discharge of his duties
hereunder require.
1.2 Employee shall perform such other duties as are customarily
performed by one holding such position in other, same, or similar businesses or
enterprises as that engaged in by Employer, and shall also additionally render
such other and unrelated services and duties as may be assigned to Employee from
time to time by the Board of Directors of Employer; provided, however, that any
such duties shall be reasonable and appropriate for someone in the position of
Employee hereunder, in both nature and burden.
II. BEST EFFORTS OF EMPLOYEE
2.1 Employee agrees that he will at all times faithfully, industrially,
and to the best of his ability, experience, and talents, perform all of the
duties that my be required of and from him pursuant to the express and implicit
terms hereof. Such duties shall be rendered in Houston, Xxxxxx County, Texas,
and at such other place or places as Employer shall in good faith require or as
the interest, needs, business, or opportunity of Employer shall require or make
advisable.
III. TERMS OF EMPLOYMENT
3.1 The term of this agreement shall be for a period of five (5) years,
commencing on the effective date hereof, and shall be automatically and
continually renewed thereafter until notice of cancellation, and Employer may
not cancel this agreement on less than five (5) years written notice to
Employee.
3.2 Notwithstanding anything herein to the contrary, Employee may
terminate this agreement at any time upon thirty (30) days notice.
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IV. COMPENSATION OF EMPLOYEE
4.1 Employer shall pay Employee, and Employee shall accept from
Employer, in payment for Employee's services hereunder, an annual base salary, a
commission on quarterly net profits, and annual stock options.
4.1.1 The annual base salary due Employee hereunder shall be
$200,000 (or such higher rate as the Board of Directors or the Employer's
Remuneration Committee, if any, shall from time to time, in its discretion,
decide), payable in semi-monthly payments, due on or before the beginning of the
semi-monthly period for which it covers.
4.2 Employer shall reimburse Employee for any and all necessary and
customary expenses incurred by Employee while performing his duties.
4.3 Employer shall also provide to Employee, at no cost to Employee,
the standard insurance coverage: provided to other salaried employees of
Employer, including without limitation, if offered to such other employees, (i)
health insurance coverage, (ii) long term disability coverage, and (iii) life
insurance.
4.4 From time to time, but at least annually, the total compensation
provided for in this Article IV shall be reviewed, and shall be increased as
Employee and Employer deem appropriate.
V. OTHER EMPLOYMENT
5.1 Employee shall devote a substantial part of his time, attention,
knowledge, and skill solely to the business and interest of Employer, and
Employer shall be entitled to all of the benefits, emoluments, profits, or other
issues arising from or incident to any and all work, services, and advice of
Employee performed or given for the benefit of Employer, but not otherwise, and
Employee expressly agrees that during the term, and any extensions thereof, of
this Agreement, he will not be interested, directly or indirectly, in any
manner, as partner, officer, director, shareholder, advisor, employee, or in any
other capacity, in any other business directly competing with Employer's
business; provided, however, that nothing contained herein shall be deemed to
prevent or to limit the right of Employee to invest any of his funds in the
capital stock or other securities of any corporation whose stock or securities
are publicly owned or are regularly traded on any public exchange, whether or
not such corporation competes with Employer, nor shall anything contained herein
be deemed to prevent Employee from investing or limit Employee's right to invest
his surplus funds in real estate.
5.2 Employer hereby expressly acknowledges that Employee may on
occasion, and from time to time, at Employee's discretion, engage in employment
for the benefit and profit of business ventures other than Employer, provided
(i) such other business ventures do not directly compete with Employer, and (ii)
such other employment does not prevent Employee from providing the time and
attention reasonably necessary to carry out the obligations to Employer
contemplated herein.
5.3 It is contemplated that if closing occurs under that certain
Acquisition / Merger Agreement, Employee will be spending a substantial amount
of time engaged in employment by MegaWorld, Inc.
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VI. VACATION
6.1 The salary provided for in Section 4.1.1 above is annual, without
regard to days of vacation or leave, which shall be discretional with employee.
VII. DISCONTINUANCE OF BUSINESS
7.1 Notwithstanding anything herein to the contrary, but subject to
Section 3.1 hereof, in the event that Employer shall discontinue operating its
business in the State of Texas, then this Agreement shall terminate as the last
day of the month in which Employer ceases operations at such location with the
same force and effect as if such last day of the month were originally set as
the termination date of this Agreement.
VIII. TERMINATION
8.1 Termination Without Cause. In accordance with Section 3.1, this
Agreement may be terminated, without cause, by Employer upon not less than five
(5) years notice of termination, and in accordance with Section 3.2, Employee
may terminate this Agreement upon thirty (30) days notice.
8.2 Termination For Cause. Notwithstanding anything herein to the
contrary, Employer may terminate this Agreement for cause by written notice
taking effect on the date of service thereof, in which case Employee shall not
be entitled to any further compensation from Employer except such sums as shall
accrued through such date, in the event:
8.2.1 Employee shall be found guilty, by a court of competent
jurisdiction, of a felony involving moral turpitude; or
8.2.2 Employee shall be adjudicated, by a court of competent
jurisdiction, an "incapacitated person," as defined in the Texas
Probate Code.
IX. MISCELLANEOUS
9.1 Complete Agreement. This Agreement contains the complete agreement
concerning the employment arrangement between the parties hereto and shall, as
of the effective date hereof, supersede all other agreements between the
parties. The parties hereto stipulate that neither of them has made any
representations with respect to the subject matter hereof or any representations
including the execution and delivery of this Agreement except such
representations as are specifically set forth herein and each of the parties
acknowledges that he or it has relied on its own judgement in entering into this
Agreement. The parties further acknowledge that any payments or representations
that may have been made by either of them to the other prior to the date of
executing this Agreement are of no effect and that neither of them has relied
thereon in connection with his or its dealings with the other.
9.2 Modification. Any modification of this Agreement or additional
obligation assumed by either party hereto in connection with this agreement
shall be binding only if evidenced in writing signed by each party or an
authorized representative of each party.
9.3 Additional Remedies. It is further agreed that any breech or
evasion of any terms or conditions of this Agreement by either party will result
in immediate and irreparable injury to the other party and will authorize
recourse to injunction and or specific performance, as well as to all legal or
equitable remedies to which such injured party may be entitled under this
Agreement.
9.4 Assignment. This Agreement shall not be assignable by either party
hereto; provided that upon any sale of this business, or a substantial amount of
the assets thereof, by Employer, Employer may assign this Agreement to its
successor, or Employee may terminate same.
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9.5 Severability. The invalidity of any portion of this Agreement will
not and shall not be deemed to affect the validity of any other provision. In
the event that any provision of this Agreement is held to be invalid, the
parties agree that the remaining provisions shall be deemed to be in full force
and effect as if they had been executed by both parties subsequent to the
expungement of the invalid provision.
9.6 Governing Law; Venue. This Agreement has been executed in and shall
be governed by the laws of the State of Texas. This Agreement is executed in
Xxxxxx County, Texas, and all obligations of the parties created under this
Agreement are performable in Xxxxxx County, Texas. Venue for any action
initiated to enforce or construe the terms of this Agreement shall be proper in
Xxxxxx County, Texas.
9.7 Waiver. The failure of either party to this Agreement to insist
upon the performance of any of the terms and conditions hereof, or the waiver of
any breach of any of the terms and conditions of this Agreement, shall not be
construed as thereafter waiving any such terms and conditions hereof, but the
same shall continue and remain in full force and effect as if no such
forbearance or waiver had occurred.
9.8 Representation By Counsel. The parties hereto acknowledge that each
has been advised to retain separate counsel to provide advice with respect to
this Agreement and each party hereto warrants and represents to the other that
the respective warranting party has acted upon such advice to said party's own
satisfaction.
9.9 Attorneys' Fees. In the event that any action is filed in relation
to this Agreement, the unsuccessful party in the action shall pay to the
successful party, in addition to all sums that party may be called on to answer
in damages, a reasonable sum for the successful party's attorney's fee.
9.10 Construction. The titles to the paragraphs of this Agreement are
solely for the convenience of the parties and shall not be used to explain,
modify, simplify, or aid in the interpretation of the provisions of this
agreement.
IN WITNESS WHEREOF, each party to this Agreement has caused it to be
executed on the date first above written.
EMPLOYER: EMPLOYEE:
TOTAL BUILDING SYSTEMS, INC.
/s/ Xxxxxxx X. XxXxxxx /s/ Xxxxxxx X. XxXxxxx
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Name: Xxxxxxx X. XxXxxxx XXXXXXX X. XxXXXXX
Title: President
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