EXHIBIT 10.8
FORM OF EMPLOYMENT AGREEMENT
AGREEMENT entered into as of the 1st day of _______, 1998, by and
between C.W. Chemical Waste Technologies, Limited, a Cyprus corporation, with an
office at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000 (the "Company") and Xxxxxxx
Xxxxxxxxxxx, residing at 0-0 Xxxxxxxxx Xxxxxx, Xxxxxx 000 00, Xxxxxx
("Executive").
W I T N E S S E T H :
WHEREAS, the Company wishes to continue to employ Executive in the
principal capacity of Chief Operating Officer upon the terms and conditions
contained herein;
WHEREAS, Executive is desirous of continuing employment with the
Company and is willing to accept such employment for the inducements and upon
the terms and conditions contained herein; and
WHEREAS, the Company has bargained for a covenant by Executive not to
compete with the Company's business.
NOW, THEREFORE, in consideration of the mutual premises and mutual
covenants and agreements contained herein and for other good and valuable
consideration by each of the parties, the parties hereby agree as follows:
1. Employment. The Company hereby employs Executive and Executive
hereby accepts employment upon the terms and conditions set forth herein.
2. Term. The term of employment of Executive under this Agreement
shall be deemed to have commenced on August 1, 1998 and shall continue for an
initial term of two (2) years thereafter; provided, however, that the term of
this Agreement shall be automatically continued and extended, on the same terms
and conditions as then in effect hereunder, for additional consecutive twelve
month periods commencing upon such termination date, unless at least thirty (30)
days before the date of termination of the initial term of this Agreement or of
any such extended term, the Company shall give Executive, or Executive shall
give the Company, a notice in writing electing to terminate this Agreement as of
such termination date.
3. Office and Duties.
(a) Executive shall be elected and continue to be elected as a
director of the Company and shall initially serve as Chief Operating Officer.
Subject to the direction of the Board of Directors, Executive shall perform and
discharge well and faithfully the duties which may be assigned to him from time
to time by the Company in connection with the conduct of its business or the
business of any subsidiary or affiliate of the Company. Nothing herein shall
preclude the Board of Directors from changing Executive's title and duties if
the Board of Directors has determined in its reasonable judgment that such
change is in the Company's best interests, provided, however, that at all times
during the term of the Agreement, Executive shall be employed as a senior
executive of the Company, with appropriate and commensurate title, rank, status
and duties.
(b) During the term hereof, Executive shall devote sufficient
business time, attention and energies to the business of the Company and its
affiliates to properly discharge his duties and responsibilities under this
Agreement and shall not during the term of this Agreement be engaged (whether or
not during normal business hours) in any other business or professional
activity, whether or not such activity is pursued for gain, profit or other
pecuniary advantage, if such activity is likely to or has interfered in any way
with Executive's duties; provided that nothing in this section shall be
construed as preventing Executive from (a) investing his personal assets in
businesses which do not compete with the Company in such form or manner as will
not require any services on the part of Executive in the operation or the
affairs of the companies in which such investments are made in which his
participation is solely that of an investor, or (b) purchasing securities in any
corporation whose securities are publicly traded, provided that such purchase
shall not result in his collectively owning beneficially at any time more than
five percent (5%) of the equity securities of any corporation engaged in a
business competitive to that of the Company.
(c) During the term hereof, the principal place of employment
of Executive shall be in the metropolitan New York City area. It is understood
that in connection with his duties under this Agreement, Executive will be
required to travel to and perform services at other locations including the
Company's offices in Greece.
4. Compensation. For the services rendered by Executive
hereunder, the Company shall pay and Executive shall accept the following
compensation:
(a) For the term hereof, Executive shall receive an annual
base salary of one hundred and fifty thousand dollars ($120,000) (the "Base
Salary") which Base Salary shall be earned and shall be payable in equal
installments, no less frequently than semi-monthly, and otherwise in such manner
as is consistent with the Company's normal practice for remuneration of
executives. The amount of Executive's annual base salary for each year
commencing in the second year of the term hereof shall be the base annual salary
for the immediate prior year (as adjusted in accordance
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with the provisions of this sentence) increased by a percentage equal to the
percentage increase over the twelve (12) months ending one month prior to the
end of such year in the Consumer Price Index, All Urban Consumers, CPI-U, New
York, New York - Northeastern New Jersey, All items, 1982- 84=100, published by
the U.S. Department of Labor. This rate of compensation shall be reviewed by the
Board of Directors at least once per fiscal year and may be increased but may
not be reduced below the base salary as adjusted.
(b) With respect to each year of the term hereof, a bonus
equal to two percent (2%) of the Company's net income before provision for
income tax, computed in accordance with generally accepted accounting
principals, payable within 90 days after the end of such year.
(c) Executive shall be entitled to such additional bonus
compensation during the term hereof, as determined at the discretion of the
Board of Directors of the Company.
5. Benefits. In addition to the compensation under Paragraphs
4(a) and 4(b), Executive, during the term of this Agreement, shall be entitled
to participate in all pension, retirement, and profit-sharing plans, all
medical, hospital, major medical, life insurance, and statutory disability
coverage plans and all other employee benefit plans, in each case, which the
Company may from time to time make generally available to other executives of
the Company, on the same basis as such plan or plans and benefits are made
generally available to such individuals (subject, however, to the provisions of
said plans). All medical, hospital and major medical coverage shall be on a
family coverage basis at the Company's expense. The Board of Directors may also
include Executive as a participant in any management incentive, stock option,
bonus, or similar plan established by the Board subject, however, to the
provisions of any such plan or plans.
6. Expenses. The Company agrees to reimburse Executive in full
for all such reasonable and necessary business, entertainment and travel
expenses incurred or expended by him in connection with the performance of his
duties hereunder; provided Executive submits to the Company vouchers or expense
statements satisfactorily evidencing such expenses as may be reasonably required
by the Company and such expenses are in accordance with any corporate policy
with respect thereto.
7. Vacation. Executive shall be entitled to a paid vacation
(taken consecutively or in segments) of four weeks during each fiscal year,
adjusted pro rata for any partial fiscal year during the term hereof, during
which time he shall receive full compensation as provided in Paragraphs 4(a) and
4(b). Such vacation may be taken at such times as is reasonably consistent with
proper performance by Executive of his duties and responsibilities hereunder.
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8. Disability and Death.
(a) The term of employment of Executive shall terminate
forthwith in the event of the death of Executive, or at the option of the
Company, in the event of physical or mental incapacity or disability which
renders him unable, with reasonable accommodation, to perform the services
required of him under this Agreement ("Disability") for a period of one hundred
twenty (120) consecutive days or for one hundred eighty (180) days or more
during any period of twelve (12) consecutive months. Such Disability shall be
subject to verification by a qualified physician if requested by Executive.
During any period of Disability prior to termination, Executive shall continue
to be compensated as provided herein (less any payments due Executive under
disability benefit programs paid for by the Company including Social Security
disability, worker's compensation and disability or retirement benefits).
(b) In the event of the death of Executive during the period
of employment or in the event of the termination of this Agreement by the
Company because of the Disability of Executive, Executive's estate in the case
of death, or Executive in the case of Disability, shall be entitled to receive
the compensation specified in Paragraphs 4(a) and 4(b) earned by Executive
through the date of death or termination, as the case may be.
9. Covenants and Restrictions.
(a) Executive agrees, as a condition to the Company agreeing
to employ Executive and to the performance by the Company of its obligations
hereunder, particularly its obligations under Paragraph 4 hereof, that during
the term of this Agreement and any renewals and extensions hereof and for a
period of one (1) year thereafter, Executive will not (i) in any way, directly
or indirectly, whether for his account or for the account of any other person,
firm, corporation or other entity, engage in, represent, furnish consulting
services to, be employed by, or have any interest in (whether as owner,
principal, director, officer, partner, agent, consultant, stockholder or
otherwise) any business which has as its primary business the treatment of
phosphogypsum or sale of any product which is used in the same manner as CLM, or
otherwise competes with the business of the Company as constituted during the
term of Executive's employment hereunder (a "Restricted Enterprise"), (ii)
induce or attempt to induce any person or entity which is a customer of the
Company or any of its affiliates as of the date of termination of Executive's
employment (or was a customer thereof within the one year prior to such
termination) to cease doing business in whole or in part with the Company, or
(iii) solicit, entice or induce any person who shall then be an employee of the
Company to become employed by any other person, firm or corporation or to leave
their employment with the Company, and Executive shall not approach any such
employee for such purpose or authorize or knowingly approve the taking of such
actions by any other person.
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The restrictions contained in this Paragraph 9(a) shall apply
in the specific geographic areas and customer markets within such geographic
areas served by the Company or its affiliates or franchisees at any time during,
or upon termination of, Executive's employment.
Nothing in the foregoing shall prohibit Executive from
engaging in any business that is not in competition with the Company after
termination of employment with the Company, or investing in the securities of
any Restricted Enterprise having securities listed on a national securities
exchange or the NASDAQ SmallCap market, provided that such investment does not
exceed 5% of any class of securities a Restricted Enterprise, and provided
further, that such ownership represents a passive investment and that neither
Executive nor any group of persons including him, in any way, either directly or
indirectly, manages or exercises control of any such corporation, guarantees any
of its financial obligations, otherwise takes any part in its business, other
than exercising his rights as a shareholder, or seeks to do any of the
foregoing.
(b) Anything here to the contrary notwithstanding, the
provisions of Paragraph 9(a) shall not apply if Executive's employment is
terminated pursuant to Paragraph 15(b) or Paragraph 16 of this Agreement.
(c) Executive acknowledges that during the term of his
employment, he will have access to confidential information of the Company,
including information about business plans, costs, customers, profits, markets,
sales, products, key personnel, pricing policies, operational methods, other
business affairs and methods and other information not available to the public
or in the public domain (hereinafter referred to as a "Confidential
Information"). In recognition of the foregoing, Executive covenants and agrees
that (i) except as required by his duties to the Company, Executive will keep
secret all Confidential Information of the Company and will not, directly or
indirectly, either during the term of his employment hereunder or at any time
thereafter while such Confidential Information remains confidential, disclose or
disseminate to anyone or make use of, for any purpose whatsoever except for the
benefit of the Company in the course of his employment, and (ii) Executive will
promptly deliver to the Company all tangible materials and objects containing
Confidential Information (including all copies thereof, whether prepared by
Executive or others) which he may possess or have under his control. The term
"Confidential Information" shall not include any information which can be
demonstrated (i) to be generally known in the industry or to the public other
than through breach of Executive's obligations hereunder, (ii) to have been
Executive's possession prior to his employment with the Company and not assigned
to the Company, or (iii) to have been disclosed to Executive by an independent
third party not under any obligation or confidentiality.
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10. Remedies.
(a) Executive acknowledges that the restrictions contained in
Paragraph 9 are reasonable and necessary to protect the legitimate business
interests of the Company and that the Company would not have entered into this
Agreement in the absence of such restrictions. By reason of the foregoing,
Executive agrees that in the event of a breach or threatened breach by him of
the provisions of Paragraph 9 hereof, the Company would sustain irreparable harm
and, therefore, Executive irrevocably and unconditionally (i) agrees that in
addition to any other remedies which the Company may have under this Agreement
or otherwise, all of which remedies shall be cumulative, the Company shall be
entitled to apply to any court of competent jurisdiction for preliminary and
permanent injunctive relief and other equitable relief, without the necessity of
proving actual damage, restraining Executive from doing or continuing to do or
perform any acts constituting such breach or threatened breach, (ii) agrees that
such relief and any other claim by the Company pursuant hereto may be brought in
the United States District Court for the Southern District of New York, or if
such court does not have subject matter jurisdiction or will not accept
jurisdiction, in any court of general jurisdiction in the State of New York,
(iii) consents to the non-exclusive jurisdiction of any such court in any such
suit, action or proceeding, and (iv) waives any objection which Executive may
have to the laying of venue of any such suit, action or proceeding in any such
court. In the event that any of the provisions of Paragraph 9 hereof should ever
be adjudicated to exceed the duration, geographic area, product or service, or
other limitations permitted by applicable law in any jurisdiction, then such
provisions shall be deemed reformed in such jurisdiction to the maximum
duration, geographic area, product or service, or other limitations permitted by
applicable law, and Executive hereby consents to this enforcement of such
restrictions as so modified.
(b) Executive agrees that the existence of any claim or cause
of action of Executive against the Company, whether predicated on this Agreement
or otherwise, shall not constitute a defense to the enforcement by the Company
of the provisions of Paragraph 9.
(c) Executive agrees that the Company may provide a copy of
Paragraph 9 and this Paragraph 10 to any business or enterprise (i) that
Executive may directly or indirectly own, manage, operate, finance, join,
control or participate in the ownership, management, operation, financing, or
control of, or (ii) with which he may be connected as an officer, director,
employee, partner, principal, agent, representative, consultant or otherwise, or
in connection with which he may use his name or permit his name to be used;
provided, however, that this provision shall not apply as to Paragraph 9 after
the expiration of the Non-Compete Period or with respect to any activities,
entities or persons excluded by the terms thereof. Executive will provide the
names and addresses of any such persons or entities as the Company may from time
to time reasonably request.
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11. Ownership of Inventions and Ideas. Executive hereby sells,
transfers and assigns to the Company or to any person, or entity designated by
the Company, all of the entire right, title and interest of Executive in and to
all inventions, whether patented or unpatented, and copyrightable material, made
by Executive, solely or jointly, during the term hereof which relate to or
pertain to the business, functions or operations of the Company or any
subsidiary of the Company. Executive shall communicate promptly and disclose to
the Company, in such form as the Company requests, all information, details and
data pertaining to the aforementioned inventions; and, whether during the term
hereof or thereafter, Executive shall execute and deliver to the Company such
formal transfers and assignments and such other papers and documents as may be
required of Executive to permit the Company or any person or entity designated
by the Company to file and prosecute the patent applications, and as to
copyrightable material, to obtain copyrights therein.
12. Survival. Subject to the provisions of Paragraph 9(a), the
provisions of Paragraphs 9, 10 and 11 shall survive the termination of
employment under this Agreement for any reason whatsoever.
13. [Intentionally omitted]
14. Executive's Warranties. Executive represents and warrants to
the Company:
(a) that he has full power and authority to enter into this
Agreement,
(b) that he is not subject or a party to any employment
agreement, non-competition covenants, non-disclosure agreement or other
agreement, covenant, understanding or restriction which would prohibit Executive
from executing this agreement and performing fully his duties and
responsibilities hereunder, or which would in any manner, directly or
indirectly, limit or affect the duties and responsibilities which may now or in
the future be assigned to Executive by the Company,
(c) that he will indemnify the Company and hold it harmless
from and against any and all such claims, charges or liabilities, including
reasonable attorneys' fees, incurred by the Company in connection with (a) and
(b) above,
(d) his experience and capabilities are such that the
restrictions contained herein will not prevent him from obtaining employment or
otherwise earning a living at the same general economic benefit as reasonably
required by him, and
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(e) Executive has, prior to the execution of this Agreement,
reviewed this Agreement thoroughly with his legal counsel.
15. Termination Provisions.
(a) In addition to, and not in lieu of, the termination
provisions set forth in Paragraph 8 herein, the employment of Executive
hereunder may be terminated by the Company prior to the termination date of the
initial term or any renewal term thereafter (as set forth in Paragraph 2 hereof)
for "Cause." "Cause" is defined as:
(i) Executive's conviction in a court of law of a
felony;
(ii) Any act of dishonesty or willful misconduct by
Executive which adversely affects the reputation or business activities
of the Company and which activities continue after written notice
thereto to Executive;
(iii) Executive's willful misfeasance for which the
Company is directly and adversely affected;
(iv) Executive's continuing material failure or refusal
to perform his duties in accordance with the terms of this Agreement or
to carry out in all material respects the lawful directives of the
Board of Directors; provided that discharge pursuant to this
subparagraph (iv) shall constitute discharge for Cause only if
Executive has first received written notice from the Board of Directors
of the Company stating with specificity the nature of such failure or
refusal and, if requested by Executive within 10 days thereafter,
Executive is afforded a reasonable opportunity to be heard before the
Board and thereafter a reasonable opportunity to correct the acts or
omissions complained of; and
(v) substance abuse for which Executive fails to
undertake and maintain treatment within 15 days after a request by the
Company.
Such termination of Executive's employment hereunder for Cause shall be
effective upon delivery of written notice to Executive, setting forth with
specificity the exact nature of the "Cause" for which Executive is being
terminated. Upon the termination of this Agreement for "Cause" as set forth in
this subparagraph, the Company shall not be obligated to make any further
payments hereunder to Executive, except for compensation pursuant to Paragraphs
4(a) and 4(b) to which Executive is entitled through the date of termination,
bonus compensation to which Executive is entitled for and in respect of the
preceding fiscal year if not theretofore paid, and any benefits referred to in
this Agreement to which Executive has a vested right under the terms and
conditions of the plan or program pursuant to which such benefits were granted.
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(b) Notwithstanding any provisions in this Agreement to the
contrary, the Company may terminate the employment of Executive without Cause,
but in such event the Company shall be obligated to pay Executive any and all
amounts payable to Executive pursuant to Paragraph 4 above for the greater of
(i) the remainder of the initial term or the extended term, as the case may be,
of the Agreement in effect immediately prior to such termination, or (ii) one
(1) year (the "Remainder Term"), and the Company shall also continue for the
Remainder Term to permit Executive to receive or participate in all benefits
available to him pursuant to Paragraph 5 above.
16. Change of Control.
(a) In the event Executive's employment is terminated (a) by
the Company within one (1) year following a Change in Control (as hereafter
defined) of the Company occurring at any time during the term of this Agreement,
except if such termination is for Cause, or (b) voluntarily by Executive within
six (6) months following a Change in Control of the Company, the Company shall
pay Executive the remainder of his compensation as set forth in Paragraph 4.
(b) A "change of control" shall be deemed to occur when
(i) the Company's shareholders approve (x) a merger or
consolidation in which the Company is not the surviving corporation
and/or which results in any reclassification or reorganization of the
then outstanding Common Stock, (y) a sale of all or substantially all
of the Company's assets or capital stock or (z) a plan of liquidation
or dissolution of Company;
(ii) the Common Stock is purchased pursuant to a tender
or exchange offer (other than a tender or exchange offer made by the
Company) affecting at least 25% of the Common Stock or any other direct
or indirect sale of at least 25% of the Common Stock to a person or
group of persons who are not officers, directors or 5% shareholders of
the Company on the date hereof; or
(iii) any other event or series of events occurs that
would be required to be described as a change in control of the Company
in a proxy or information statement pursuant to Schedule 14A or 14C
promulgated under the Securities Act of 1933, as amended.
17. Miscellaneous.
(a) All actions or proceedings in any way, manner or
respect, arising out of or from or related to this Agreement shall be litigated
in courts having situs within the County of New York, State of New York.
Executive hereby consents and submits to the jurisdiction of any local,
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state or federal court located within said county and state. Executive and the
Company each waive any right to trial by jury in any action or proceeding
relating to this Agreement.
(b) Any notice, statement, report, request or demand
required or permitted to be given by this Agreement shall be in writing, and
shall be deemed to have been duly given (a) when delivered personally, or (b)
when sent by confirmed facsimile if sent on a business day prior to 5:00 p.m.
local time at the place of receipt, or on the following business day if sent
after 5:00 p.m. or on a non-business day, or (c) on the day following delivery
by a courier service if sent by next day delivery via a recognized natural or
international courier service as appropriate, or (d) five (5) days after the
date when mailed by registered or certified mail, return receipt requested,
postage prepaid. All such notices, requests, demands, acceptances and other
communications shall be addressed to the parties at the addresses first set
forth above or, if delivered by facsimile, to a facsimile number given by
Executive to the Company for such purpose.
(c) The failure of either party to insist upon the strict
performance of any of the terms, conditions and provisions of this Agreement
shall not be construed as a waiver or relinquishment of future compliance
therewith, and said terms, conditions and provisions shall remain in full force
and effect. No waiver of any term or any condition of this Agreement on the part
of either party shall be effective for any purpose whatsoever unless such waiver
is in writing and signed by such party.
(d) Should any part of this Agreement, for any reason
whatsoever, be declared invalid, illegal, or incapable of being enforced in
whole or in part, such decision shall not affect the validity of any remaining
portion, which remaining portion shall remain in full force and effect as if
this Agreement had been executed with the invalid portion thereof eliminated,
and it is hereby declared the intention of the parties hereto that they would
have executed the remaining portion of this Agreement without including therein
any portion which may for any reason be declared invalid.
(e) This Agreement and all rights hereunder are personal to
Executive and shall not be assignable, and any purported assignment in violation
thereof shall be null and void. Any person, firm or corporation succeeding to
the business of the Company by merger, consolidation, purchase of assets or
otherwise, shall assume by contract or operation of law the obligations of the
Company hereunder; provided, however, that the Company shall, notwithstanding
such assumption and/or assignment, remain liable and responsible for the
fulfillment of the terms and conditions of the Agreement on the part of the
Company.
(f) This Agreement constitutes the entire agreement between
the parties hereto with respect to the terms and conditions of Executive's
employment by the Company, as distinguished from any other contractual
arrangements between the parties pertaining to or arising out of their
relationship, and this Agreement supersedes and renders null and void any and
all other
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prior oral or written agreements, understandings, or commitments pertaining to
Executive's employment by the Company. No variation hereof shall be deemed valid
unless in writing and signed by the parties hereto, and no discharge of the
terms hereof shall be deemed valid unless by full performance by the parties
hereto or by a writing signed by the parties hereto. No waiver by either party
of any provision or condition of this Agreement by him or it to be performed
shall be deemed a waiver of similar or dissimilar provisions and conditions at
the same time or any prior or subsequent time.
(g) The heading of the paragraphs herein are inserted for
convenience and shall not affect any interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first written above.
EXECUTIVE C.W. CHEMICAL WASTE TECHNOLOGIES
LIMITED
By:
------------------------------- -------------------------
Xxxxxxx Xxxxxxxxxxx Name:
Title:
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