EXHIBIT 10.1
EMPLOYMENT AGREEMENT
AGREEMENT made this 9th day of January, 1995, by and between Trident
Environmental Systems, Inc., a Florida corporation, hereinafter sometimes called
the "Employer", having its principal place of business in Xxxx Xxxx Xxxxx,
Xxxxxxx, and Xxxxxx X. Xxxxxxxxx, of Hallandale, Florida, hereinafter sometimes
called the "Employee".
WHEREAS, the Employee and Employer desire to set forth in writing their
contract with respect to Employee's employment by Employer;
NOW, THEREFORE, in consideration of their mutual promises set forth herein,
the parties hereby agree as follows:
1. EMPLOYMENT. Employer hereby employs Employee, and Employee hereby
accepts such employment, upon the terms and conditions set forth in this
Agreement.
2. DUTIES AND AUTHORITY.
A. Employee will occupy the position of Executive Vice President,
(hereinafter referred to as "Position" or "Assignment") with the Employer and
may serve as a member of the Board of Directors of the Employer.
B. In this position, Employee will have the responsibility of Chief
Operating Officer, subject to the control of the President and Board of
Directors, and have general supervision, direction and control, as necessary,
over the business and affairs of the Corporation and its Employees. Employee
will be primarily responsible for carrying out all orders and resolutions of the
President and/or Board of Directors and such duties as may from time to time be
assigned to Employee by the President and/or Board of Directors.
C. In the absence of the Chairman of the Board and President at any
Shareholders or Board of Directors meeting, Employee will preside over that
Shareholders meeting and, in the event Employee is then a Director of the
Employer, will preside over the Board of Directors meeting.
D. Employee agrees to devote his full time attention and best efforts to
the performance of employment hereunder.
3. TERM OF EMPLOYMENT. The term of employment shall begin on the date of
this Agreement, and shall extend for a period of ten (10) consecutive years or
until terminated as provided herein.
4. COMPENSATION. Employee will receive compensation during the term of
this Agreement as follows:
A. A base annual salary of One Hundred Twenty Thousand Dollars
($120,000) payable either bi-monthly or monthly at the discretion of the
Employer. The base salary shall be adjusted at the end of each year of
employment to reflect any change in the cost of living by multiplying the salary
for the prior year by a fraction, the numerator of which is the National
Consumer Price Index (NCPI) for the month most recently released by the Bureau
of Labor Statistics of the United States Department of Labor and the denominator
of which is the NCPI for the identical month in the preceding year. If this
index is discontinued, changed or unavailable, Employer shall determine and
utilize a similar criterion for reflecting any increase in the cost of living.
Additionally, at its discretion, the Board of Directors may elect to increase
Employee's base annual salary at any time durring the term of this agreement.
B. An incentive salary (Bonus) equal to a minimum of two percent (2%) of
the adjusted net profits (hereinafter defined) of the Employer during each
fiscal year beginning or ending during the term of this Agreement. Said Bonus to
be paid to the Employee in cash or company stock or any combination thereof with
the method of payment to be at the sole discretion of the Employee. "Adjusted
net profit" shall be the net profit before federal and state income taxes,
determined in accordance with accepted accounting practices by the independent
accounting firm employed by the Employer as auditors and adjusted to exclude:
(i) any incentive salary payments paid pursuant to this Agreement; (ii) any
contributions to pension and/or profit-sharing plans; (iii) any extraordinary
gains or losses (including, but not limited to, gains or losses on disposition
of assets); (iv) any refund or deficiency of federal and state income taxes paid
in a prior year; and (v) any provision for federal or state income taxes made in
prior years which is subsequently determined as unnecessary. The determination
of the adjusted net profits made by the independent accounting firm employed by
the Employer shall be final and binding upon Employee and the Employer. For the
first and last fiscal years ending and beginning, respectively, during the term
of this Agreement, the incentive salary shall be computed for the proportion of
the fiscal year coextensive with this Agreement. The incentive salary shall be
paid within sixty (60) days after the end of each fiscal year. The maximum
incentive salary payable for any one year shall not exceed two hundred percent
of Employee's base annual salary unless authorized by the Board of Directors.
C. The Board of Directors and the Employee may agree to waive the cost of
living adjustment in (A) above or the incentive pay in (B) above. Both parties
must agree to waive these requirements or the original clause shall stand in
effect.
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D. Due to the nature of the Corporation's business and its unpredictable
cash flow; for the good of the Corporation and at the sole discretion of the
Employee, Employee may elect to (a) accept partial payment of Employee's base
salary and/or bonus in unrestricted, free-trading common stock of the
Corporation, or (b) accept partial payment of Employee's salary in cash with the
balance to be paid to Employee in cash upon demand at a later date. Should
Employee elect (a) above, the value of shares issued in lieu of cash shall be
determined by the bid price of the Corporation's common stock at the close of
the market on the Employee's scheduled payday as defined in (4.A.) of this
agreement. The percentage, if any, of salary and/or bonus taken in stock in lieu
of cash is at the sole discretion of the Employee. Should Employee elect (b)
above, the percentage of salary Employee agrees to accept as partial payment is
at the sole discretion of Employee, as is the due date of the payment of any
balance of salary owed employee.
5. DEFERRED COMPENSATION. In the event that Employee retires after
performing services for the Employer up until Employee reaches the age of 65 or
retires at an earlier age with the approval of the Employer, Employee will be
entitled to deferred compensation payments after retirement upon the following
terms and conditions:
A. For a period of twenty (20) years ("Retirement Period") Employee will
receive all of the following: (i). Base Payments equal to thirty percent (30%)
of the average total salary (base salary plus incentive salary) paid to Employee
during the last three (3) full years of employment or based upon his/her total
period of employment, should that period be less that three (3) full years,
prior to the month of retirement ("Retirement Salary Base"); (ii). Advisor
Payments equal to thirty percent (30%) of the Retirement Salary Base, Employee
will serve as an advisor and consultant to the Employer regarding its business.
Employee will hold himself available to perform services at reasonable times at
the request of the Board of Directors of the Employer, consistent with any
business activities Employee may be engaged in at such time. The Board of
Directors of the Employer shall have the right to require the presence of
Employee at any Board of Directors meeting, not exceeding more than one meeting
per month, to act and serve in the advisory capacity. Attendance at these Board
of Directors meetings shall not be required should Employee's health prevent
attendance; however, Employer shall have the right to demand a written statement
from Employee prepared by a licensed medical examiner evidencing inability of
Employee to attend the meeting or meetings. Employee will be reimbursed for all
reasonable and necessary travel and incidental expenses incurred by Employee in
connection with the performance of advisory services; and (iii). Non-competition
Payments equal to forty percent (40%) of the Retirement Base Salary provided
that Employee will not, directly or indirectly, perform any
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business, commercial, or consulting services to any person, firm, or
organization or become associated as a manager, Employee, director, or owner of
any business organization competing directly or indirectly with the Employer,
whether or not compensated without the prior written consent of Employer. In the
event that Employer and Employee are unable to agree on whether a particular
business in which Employee attempts to engage is directly or indirectly in
competition with the Employer, the matter will be submitted to arbitration under
the provisions of Paragraph 22 of this agreement.
B. The deferred compensation payments shall be made in equal monthly
installments on the first day of each month, starting the month following the
month of retirement.
C. In the Event of the death of Employee prior to the expiration of the
"Retirement Period", the Employer will pay all remaining Base Payments specified
in subparagraph A(i), and no other deferred compensation payments, to any
beneficiary of Employee designated by Employee in a written document filed with
the Employer, or in the absence of such designation, the estate of Employee. The
Employer may elect to pay these remaining Base Payments in a lump sum or in the
equal monthly installments specified in subparagraph B.
D. Employee shall not sell, assign, transfer, or pledge, or in any other
way dispose of or encumber, voluntarily or involuntarily, by gift, testamentary
disposition, inheritance, transfer to any inter-vivos trust, seizure and sale by
legal process, operation of law, bankruptcy, winding up of a corporation, or
otherwise, the right to receive any deferred compensation pursuant to this
Agreement.
6. RELOCATION. In the event Employee is transferred and assigned to a new
principal place of work located more than fifty (50) miles from Employee's
present residence, Employer will pay for all reasonable relocation expenses
including:
A. Transportation fares, meals, and lodging for Employee, his spouse, and
family from Employee's present residence to any new residence located near the
new principal place of work.
B. Moving of Employee's household goods and the personal effects of
Employee and Employee's family from Employee's present residence to the new
residence.
C. Lodging and meals for Employee and Employee's family for a period of not
more than sixty (60) consecutive days while occupying temporary living quarters
located near the new principal place of work.
D. Round trip travel, meals and lodging expenses for Employee's family for
no more than two (2) house hunting trips to locate a new residence, each trip
not to exceed fourteen (14) days; and
E. Expenses in connection with the sale of the residence of Employee
including Realtor fees, property appraisals, mortgage prepayment penalties,
termite inspector fees, title insurance policy and revenue stamps, escrow fees,
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fees for drawing documents, state or local sales taxes, mortgage discount points
(if in lieu of a prepayment penalty), and seller's attorney's fees (not to
exceed one percent (1%) of the sales price). At the option of Employee and in
lieu of reimbursement for these expenses, Employee may sell the residence of
Employee to the Employer at the fair market value of the residence determined by
an appraiser chosen by the Employer. The appraisal will be performed within ten
(10) days after notice of transfer and notice of appraised value will be
submitted by report to Employee. Employee will have the right to sell the
residence to the Employer at the appraised price by giving notice of intent to
sell within thirty (30) days from the date of the appraisal report. The term
"residence" shall mean the property occupied by Employee as the principal
residence at the time of transfer and does not include summer homes,
multiple-family dwellings, houseboats, boats, or airplanes but does include
condominium or cooperative apartment units and duplexes (two family) occupied by
Employee.
7. MEDICAL AND GROUP INSURANCE. At the expense of the Employer, Employer
agrees to include Employee in the group medical and hospital plan of Employer,
when such plan is established, and will provide group life insurance for
Employee in the amount of not less than Three Hundred Fifty Thousand Dollars
($350,000) during the term of employment.
8. VACATION, SICK/PERSONAL LEAVE. For the first two (2) years of
employment, Employee shall be entitled to three (3) weeks of paid vacation
during each year of employment; for the third year and each year thereafter,
said vacation time shall increase to four (4) weeks during each year. The time
for the vacation shall be mutually agreed upon by Employee and Employer. If
vacation is not taken for the benefit of the Employer, Employee shall be
reimbursed at his base salary rate for time not taken. Employee shall receive
thirty (30) days Sick/Personal Leave for each year of employment. Unused
Sick/Personal Leave will accrue and be retained by Employee to be used at his
discretion.
9. AUTOMOBILE. Employer will provide to Employee, during the term of this
agreement, the use of a new luxury automobile of the Employees choice, said
automobile may be leased, rented or purchased by Employer at Employer's
discretion. Value of said automobile shall be determined by the following
guidelines: for the initial automobile; a vehicle that could normally be
purchased with a 20% down payment and total monthly payments not to exceed
$800.00 for a period of five (5) years. Employer will replace the automobile
with a new, comparable vehicle every two (2) years regardless of necessary
payment increases due to price increases of a comparable vehicle. Employer will
pay all automobile operating expenses incurred by Employee in the performance of
Employee's business duties. The Employer will procure and maintain in force an
automobile liability policy for the automobile with coverage, including
Employee, in the minimum amount of One Million Dollars ($1,000,000) combined
single limit on bodily injury and property damage.
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10. EXPENSE REIMBURSEMENT. Employee shall be entitled to reimbursement
for all reasonable expenses, including travel and entertainment, incurred by
Employee in the performance of Employee's duties. Employee will maintain records
and written receipts as required by federal and state tax authorities to
substantiate expenses as an income tax deduction for Employer and shall submit
vouchers for expenses for which reimbursement is made.
11. LOW INTEREST LOAN.
A. From time to time, Employee may borrow sums from Employer up to a
maximum aggregate of Three Hundred Fifty Thousand Dollars ($350,000) provided
the Employer has excess funds available for such purposes. The Board of
Directors shall establish the amount of such funds available annually. Each loan
shall be evidenced by a Promissory Note payable in not more than sixty (60)
monthly principal and interest installment payments starting with the first day
of the month following the month in which the loan is made, with interest at the
rate of three percent (3%) per year on the unpaid balance of the loan or loans
outstanding.
B. In the event Employee xxxxxx employment with Employer for reasons other
than permanent disability, death, or retirement while a loan or loans are
outstanding, the unpaid principal amount then outstanding shall be due and
payable within thirty (30) days after the date of termination. In the event
severance of employment is due to permanent disability, death, or retirement,
Employee, or the legal representative of Employee, shall repay any outstanding
loan in accordance with the terms of the promissory note.
C. Should there be a default in the payment of any installment of principal
and interest when due, then the entire sum of principal and interest, at the
option of the Employer, shall immediately become due and payable without demand
or notice. In case this note shall not be paid when due according to its terms,
Employee shall pay all costs of collection and reasonable attorney's fees
whether or not suit is filed on the note.
12. PERMANENT DISABILITY.
A. In the event Employee becomes permanently disabled (hereinafter defined)
during employment with Employer, Employer may terminate this agreement by giving
thirty (30) days notice to Employee of its intent to terminate, and, unless
Employee resumes performance of the duties set forth in Paragraph 2 within five
(5) days of the date of notice and continues performance for the remainder of
the notice period, this agreement will terminate at the end of the thirty (30)
day period. "Permanently disabled" for the purpose of this agreement will mean
the inability, due to physical or mental ill health, or any reason beyond the
control of Employee to perform Employee's duties for sixty (60) consecutive days
or for an aggregate of ninety (90) days during any one employment year
irrespective of whether such days are consecutive.
B. Upon termination of employment under the provisions of subparagraph
(12A) above, Employee will be entitled to any deferred compensation to which the
Employee may be entitled under the provisions of
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Paragraph 5 herein paid to him upon giving notice to the Employer. For the
purposes of Paragraph 5, termination under subparagraph (12A) of this agreement
shall be considered "retirement"; Employee will be excused from performing
advisory services as required under Paragraph 5(B)(ii.) but shall nevertheless
be entitled to Advisory Payments except the extent limited by death of Employee
as set forth in Paragraph 5(C) herein.
C. Employer shall maintain, at its expense, a disability Policy covering
Employee for a dollar amount specified by Employee. This amount may not exceed
one hundred percent (100%) of the base salary. Benefits of this policy shall
begin on the date the Employee's Sick/Personal Leave days are exhausted and
shall continue until the Employee's deferred compensation as outlined in
paragraph 5 of this agreement goes into effect.
13. DEATH. In the event that Employee dies during the term of this
agreement, this agreement shall immediately terminate except as provided in
paragraph 5C. herein.
14. TERMINATION.
A. This agreement may be terminated by Employer by giving ten (10) days
notice to Employee if Employee willfully breaches or habitually neglects the
duties to be performed under Paragraph 2, habitually engages in the use of
illegal substances or the excessive use of alcohol, or engages in any conduct
which is illegal or dishonest resulting in damage to the reputation of Employer.
B. This agreement may be terminated by Employee, without cause, by giving
ninety (90) days notice to Employer.
C. In the event employment is terminated pursuant to subparagraphs (14A) or
(14B), Employee will be entitled to only base salary compensation earned prior
to the date of termination as provided for in Paragraph 3 of this agreement
computed pro rata up to and including the date of termination, plus one twelfth
(1/12) of one years base salary. Employee shall not receive the incentive salary
payments or the deferred compensation payments provided for in Paragraphs 3(B)
and 4, respectively.
D. Should Employer wish to terminate the Employee for any reason, other
than those listed in subparagraph (14A) of this agreement, Employee shall
receive the compensation due for the remainder of the Term of Employment
(defined in paragraph (3) of this agreement), said compensation shall be in a
lump sum equal to the total amount of the base salary as defined in subparagraph
(4A) of this agreement, in this case "cost of living" increases would not be
applicable. Employee would still receive the "Bonus" as defined in paragraph
(4B) of this agreement. Upon termination as defined in this paragraph, Employee
would, regardless of age, tenure or Employer approval, immediately become
eligible to also receive Deferred Compensation as defined in sub-paragraphs five
A through five D (5A-5D) of this agreement.
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E. In the event Employer is acquired, is a non surviving party in a merger,
or transfers substantially all of its assets, this agreement shall not be
terminated and Employer agrees to take all actions necessary to ensure that the
transferee or surviving company is bound by the provisions of this agreement.
15. NOTICES. Any notice provided for in this Agreement shall be given in
writing. Notices shall be effective from the date of service, if served
personally on the party to whom notice is to be given, or on the second day
after mailing, if mailed by first class mail, postage prepaid. Notices shall be
properly addressed to the parties at their respective addresses: Employer:400
Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxx Xxxx Xxxxx, XX 00000 Employee: 0000
Xxxxxxxx Xxxxxx Xxxx. # 0, Xxxxxxxxxx, XX 00000,xx to such other address as
either party may later specify by notice to the other.
16. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
supersedes all prior agreements and understandings., oral or written, with
respect to the subject matter hereof. This Agreement may be changed only by an
agreement in writing signed by the party against whom any waiver, change,
amendment or modification is sought.
17. WAIVER. The waiver by the Employer of a breach of any of the provisions
of this Agreement by the Employee shall not be construed as a waiver of any
subsequent breach by the Employee.
18. GOVERNING LAW; VENUE. This Agreement shall be construed and enforced in
accordance with the laws of the State of Florida. Palm Beach County, Florida,
shall be the proper venue for any litigation arising out of this Agreement.
19. PARAGRAPH HEADINGS. Paragraph headings are for convenience only and are
not intended to expand or restrict the scope or substance of the provisions of
this Agreement.
20. ASSIGNABILITY. The rights and obligations of the Employer under this
Agreement shall inure to the benefit of and shall be binding upon the successors
and assigns of the Employer. This Agreement is a personal employment agreement
and the rights, obligations and interests of the Employee hereunder may not be
sold, assigned, transferred, pledged or hypothecated.
21. SEVERABILITY. If any provision of this Agreement is held by a court of
competent jurisdiction to be invalid or unenforceable, the remainder of the
Agreement shall remain in full force and effect and shall in no way be impaired.
22. ARBITRATION. Any controversy or claim arising out of or relating to
this contract, or breach thereof, shall be settled by arbitration in accordance
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with the Rules of the American Arbitration Association and judgment upon the
award rendered by the arbitrators may be entered in any court having
jurisdiction thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the ___
day of _____________, 19___.
FOR EMPLOYEE
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Xxxxxx X. Xxxxxxxxx Witness
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FOR THE COMPANY
TRIDENT ENVIRONMENTAL SYSTEMS, INC., a Florida corporation
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Xxxxxx X. Xxxxxxx, President Witness
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Xxxxxx X. Xxxxx, Xx., Secretary Witness
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