Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (hereinafter "Agreement") is made as of the first day
of January, 2003 by and between SYSTEMONE TECHNOLOGIES INC., a Florida
corporation (hereinafter the "Employer") and XXXX X. XXXXXX, an individual
(hereinafter "Employee").
RECITALS:
A. The Employer desires to assure itself of the services of the
Employee and to that end desires to enter into a contract of
employment with the Employee upon the terms and conditions
herein set forth; and
B. The Employee is desirous of entering into such a contract of
employment.
NOW, THEREFORE, in consideration of the premises, representations, warranties
and the mutual covenants herein set forth, the parties hereto agree as follows:
1. EMPLOYMENT DUTIES.
(a) Employer hereby hires Employee during the Employment
Period (defined below) as Executive Director, to perform such services and
duties in accordance with Section 1 of this Agreement. Employee also agrees to
assume the responsibilities for the position of interim Chief Executive Officer
pending the hiring of a permanent Chief Executive Officer by the Employer.
(b) During the Employment Period, the Employee shall
faithfully perform the Employee's duties to the best of the Employee's ability
and in accordance with the directions of the Employer, at all times exercising
the Employee's best business judgement. The Employee shall devote such amount of
working time, attention and energies as the Employee deems necessary and
required for the proper and complete performance of such duties although
Employee shall not be required to maintain specific working hours beyond the
period as interim Chief Executive Officer. In addition to the duties assigned to
the Employee by the Employer during the Employment period, the Employee shall
perform such other duties as are commensurate with the Employee's position and
title, including, by way of illustration and not in limitation, overseeing the
overall management of the Employer's Company and furnishing to the Employer the
Employee's best advice, information, judgement and knowledge with respect to the
operations of the Employer's businesses.
2. EMPLOYMENT TERM.
(a) "The Employment Period" shall be a period of twenty four
(24) months from the date of effectiveness of this Agreement which is first day
of January, 2003 and any extensions of such period.
(b) At least ninety (90) days prior to the expiration of the
initial Employment Period or any Renewal Period as that term is hereinafter
defined, the Employer shall notify the Employee of its intention to extend the
Employment Period for an additional one (1) year (the "Renewal Period"). If the
Employer notifies the Employee of its intention to extend the Employment Period,
the Employer shall inform the Employee of any modifications to the salary,
employee plans and fringe benefit arrangements for the extended Employment
Periods as least sixty (60) days prior to the expiration of the Employment
Period and the Employee shall, at least thirty (30) days prior to the expiration
of the employment Period, submit in writing notification of his acceptance of
the Employer's offer to extend the Employment Period. Failure of the Employer to
provide notice in a timely manner as provided in the first section of 2(b)
hereof shall result in the automatic extension of this Agreement for one (1)
year with all the same terms and provisions hereof, except that the Base Salary
(as defined in Section 3(a) below) shall be increased pursuant to Section 3(a).
(c) In the event of the Employee's death prior to the
expiration of the Employment Period, all obligations of the Employer under this
Agreement shall terminate except of the Employer's obligations to pay for
services rendered by the Employee prior to his death.
(d) Employee may terminate this Agreement at anytime upon one
hundred twenty (120) days notice to the Company of his intention to resign as
the interim Chief Executive Officer and/or Executive Director. All salary earned
but unpaid at the date of his resignation shall become due and payable upon the
date of his resignation.
(e) The Board of Directors of the Company may elect to
terminate this Agreement for "Cause". For purposes of this Agreement, "Cause"
shall mean that, prior to any other termination pursuant to this Section 2, (i)
an act or acts of fraud or personal dishonesty taken by the Employee and
intended to result in substantial personal enrichment of the Employee at the
expense, and to the detriment, of the Company, (ii) repeated violations by the
Employee of the Employee's obligations under this Agreement which are
demonstrably willful and deliberate on the Employee's part and which are not
remedied in a reasonable period of time after receipt of written notice by the
Employee from the Company, or (iii) the conviction of the Employee by a court of
competent jurisdiction of a felony crime. The determination of Cause shall be
made by the Board of Directors of the Company (the "Board") at a meeting of the
Board called and held for such purpose, where the Employee shall be provided
reasonable written notice of such meeting and of the acts or omissions alleged
to constitute "Cause," and shall have an opportunity to address the Board in
person regarding the acts or omissions of which he is accused. Any termination
for Cause shall be made in writing to the Employee by the Board, which notice
shall set forth in detail all acts or omissions upon which the Company is
relying for such termination.
(f) In the event that this Agreement is terminated by the
Employer for any reason other than for Cause or the Employee's death or total
and permanent disability prior to the end of the term specified in Section 2
hereof, Employee shall be entitled to receive: (i) continuation of salary
payments as provided in Section 3 hereof during the remaining term of this
Agreement but for the termination of this Agreement and (ii) continuation of
benefit coverage as provided in Section 3 hereof during the remaining term of
this Agreement but for the termination of this Agreement.
3. COMPENSATION.
(a) As compensation for the performance of the Employee of his
obligations under this Agreement, the Employer shall pay to the Employee a
salary in the amount of two Hundred Thousand Dollars ($200,000.00) per year
during the term of this Agreement through December 31, 2004, or (if extended by
the Company) through December 31, 2005.
(b) As additional compensation, Employer shall provide
Employee and his family with health insurance under the Company's health benefit
program
(c) As additional compensation, Employer shall provide
Employee with a leased automobile of Employee's choice, the cost of such leased
vehicle shall not exceed $750.00 per month. Employee shall be solely responsible
for all other expenses related to the leased automobile including insurance,
fuel and maintenance.
(d) Employee is authorized to incur, in his discretion,
reasonable business expenses in connection with the performance of his duties
under this Agreement, including travel and entertainment expenses and the
Employer shall reimburse Employee for any expenses so incurred, including
reasonable transportation expenses incurred by the Employee in the performance
or initiation and promotion of the Employer's business.
(e) Further, during the Employment Period the Employee may
participate in such employee incentives, plans or fringe benefit arrangements as
the Employer shall make available to the Employee or others.
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4. DISCLOSURE OF INFORMATION.
Employee acknowledges that the Employer maintains highly confidential and
proprietary information that will be accessible to Employee at all times and
that such information constitutes valuable and unique property of the Employer.
During the term of this Agreement and for a period of three (3) years following
the Employee's termination of employment, Employee will not disclose any
confidential information, including without limitation, information regarding
the Employer's patents, research and development, manufacturing process or any
knowledge or information with respect to confidential or trade secrets of the
Employer except that which may be deemed to be in the public domain. Nothing
contained herein shall be construed as authorizing Employee to disclose
confidential information either during the employment period with Employer or at
any time thereafter, or in any way diminish the Employer's complete rights and
ownership of its confidential or proprietary information, patents, research and
development, manufacturing process or any other proprietary information or trade
secrets.
5. NON-COMPETITION.
During the term of this Agreement and for three (3) years thereafter, Employee
will not directly or indirectly, whether as principal, agent, trustee or through
the agency of any corporation, partnership, association or agent, engage in any
business in substantial competition with the Employer's or its affiliates'
business of automotive and industrial parts washers, nor shall Employee become
an officer, director or employee of any corporation, partnership or any other
business in substantial competition with the Employer's or its affiliates'
business of automotive and industrial parts washers. Notwithstanding anything
herein to the contrary, Employee may serve as an officer, director, employee,
consultant and/or participate in any company and/or any other activities during
the Term of this Agreement that is not in substantial competition with the
Employer's or its affiliates' business of automotive and industrial parts
washers, provided that such activities do not interfere with the performance of
Employee's responsibilities to the Employer under this Agreement.
6. NOTICE.
Except as and to the extent specifically provided herein to the contrary, any
notice, approval, consent, demand, application or other communication between
the parties hereto required or permitted hereunder shall be in writing and shall
be sufficiently given if delivered in person, or mailed by certified mail, with
return receipt requested and postage prepaid, or delivered to a bonded air
courier service for overnight delivery, addressed as follows or to such other
address as any party hereto shall notify the other parties hereto:
(a) If to the Employer, to: (b) If to Employee, to:
SYSTEMONE TECHNOLOGIES INC. XXXX X. XXXXXX
0000 X.X. 00xx Xxxxxx, Xxxxx 000 5050 N.W. 00xx Xxxxx Xxxxx
Xxxxx, Xxxxxxx 00000 Xxxxx, Xxxxxxx 00000
Notices shall be deemed to have been delivered upon the earlier of actual
receipt or five (5) days after deposit in the United States mail or one day
after deposit with a bonded air courier service for delivery next day delivery.
7. MODIFICATION.
No modification, amendment or waiver of any of the provisions of the Agreement
shall be effective unless made in writing specifically referring to this
Agreement and signed by all parties.
8. ENTIRE AGREEMENT.
This instrument constitutes the entire Agreement of the parties hereto with
respect to Employee's employment and the compensation therefor.
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9. WAIVER.
The failure to enforce at any time any of the provisions of this Agreement or to
require at any time performance by any party of any of the provisions hereof
shall in no way be construed to be a waiver of such provisions or to affect
either the validity of this Agreement, or any part hereof, or the right of each
party thereafter to enforce each and every provision in accordance with the
terms of this Agreement.
10. SEVERABILITY.
The invalidity or unenforceability of any particular provision of this Agreement
shall not effect the other provision hereof, and this Agreement shall be
construed in all respects as if such invalid or unenforceable provision were
omitted.
11. SUCCESSORS.
This Agreement shall be binding upon and shall inure to the benefit of the
Employer and any successor of the Employer. For the purposes of this Agreement,
the term "successor" shall mean any person, firm, corporation or other business
entity which at any time, whether by merger, purchase or otherwise, shall
acquire all or substantially all of the assets or business of the Employer as a
whole. This Agreement shall also be binding upon and shall inure to the benefit
of the Employee and Employee's legal representatives except that the Employee's
obligations to perform such future services and rights to receive payment
therefor are hereby expressly declared to be non-assignable and
non-transferable.
12. GOVERNING LAW.
This Agreement is entered into the State of Florida and shall be construed in
accordance with the laws of the State of Florida. The parties hereto consent to
the jurisdiction of the state courts of the state of Florida and the appropriate
United States District Court for Florida for all purposes in connection with any
litigation between or among the parties hereto. Employee hereby irrevocably
waives any objection which he now or hereafter may have to the laying of venue
of any action or proceeding arising out of or relating to this Agreement brought
in the United States District Court for Florida and any objection on the ground
that any such action or proceeding in either of such Courts has been brought in
an inconvenient forum.
13. PRIOR EMPLOYMENT AGREEMENTS.
This Agreement supersedes and replaces in its entirety any prior employment
agreements entered into between the Employer and the Employee and any such prior
agreements shall be deemed terminated in all respects by mutual agreement.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly
executed as of the date and year first above written.
EMPLOYER: EMPLOYEE:
By: /s/ Xxxx X. Xxxxxxxxx By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxxxxx, Director Xxxx X. Xxxxxx
By: /s/ Xxxxxxx Ch'uan-k'xx Xxxxx
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Xxxxxxx Ch'uan-k'xx Xxxxx, Director
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