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Exhibit 99.11
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into effective as of April 5, 1999,
by and between INTERNATIONAL FOAM SOLUTIONS, INC., a Florida corporation (the
"Company") and Xxxxxxx Xxxxxx ("Xxxxxx").
WHEREAS, the Company desires to secure the services of Xxxxxxx Xxxxxx,
and Xxxxxx desires to furnish such services to the Company upon the terms and
conditions set forth in this Agreement.
WHEREAS, Xxxxxx, by reason of the nature of Xxxxxx'x duties, will be
provided access to the Company's trade secrets and other confidential
information and the Company desires to maintain the confidentiality of the
same;
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein, the parties hereto agree as follows:
1. Duties. The Company hereby employs Xxxxxx to serve the Company as
Chief Operations Officer (attached as Exhibit A is the Company Job Description
for the position of Chief Operating Officer, which is incorporated herein by
this reference). Xxxxxx shall devote his full time and energy toward the
performance of the duties and responsibilities described in this Agreement and
the Exhibits hereto, which may be modified from time to time by the Company.
Xxxxxx shall refrain from engaging, directly or indirectly, in any activity or
business transaction for himself or for any other person, corporation or
subsidiary thereof, whether or not for remuneration, direct or indirect,
contingent or otherwise, which in any way competes with any operation of the
Company or which may result in a conflict of interest or otherwise adversely
effects the proper discharge of his duties with, and responsibilities to, the
Company. Such duties and responsibilities shall be performed in accordance with
the Company's rules, regulations, instructions and policies which are now in
force and as amended from time to time, or which may be adopted hereafter.
Any designs, ideas or process improvements by Xxxxxx to enhance the
Company's profitability which can or may be patented or copyrighted, will be
patented or copyrighted by the Company and Xxxxxx hereby assigns any and all
rights he may have thereto to the Company.
2. Compensation. (a) Salary and Stock Options. The Company will pay
to Xxxxxx a salary in the amount of fifty thousand dollars ($50,000.00) per
year with annual increases, bonuses, and stock options based on performance as
approved by the compensation committee or Board of Directors. After starting
date and execution of this Agreement by Xxxxxx, Xxxxxx will receive a signing
bonus option to purchase four hundred fifty thousand (450,000) shares of common
stock at ten cents ($.10) per share, exercisable within a ninety (90) day period
starting from the execution date of this Agreement, provided that Xxxxxx has
been performing his services in a manner deemed satisfactory to the Board of
Directors. Subsequent to such ninety
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(90) day option, Xxxxxx will be granted the following stock options: (i) an
option to purchase one hundred fifty thousand (150,000) shares of common stock
at twenty cents ($.20) per share of common stock to be exercised at any time
after six months (and continuing for a period of two years) has elapsed, from
the date the ninety (90) day option expired; (ii) an option to purchase one
hundred thousand (100,000) shares of common stock at thirty cents ($.30) per
share, to be exercised at any time after twelve months (and continuing for a
period two years) from the date the ninety (90) day option expired; (iii) an
option to purchase one hundred fifty thousand (150,000) shares of common stock
at fifty cents ($.50) per share, such option being exercisable for a two year
period following the one year anniversary of this Agreement; (iv) an option to
purchase one hundred fifty thousand (150,000) shares of common stock at seventy
cents ($.75) per share, exercisable for a two year period at any time following
the two year anniversary (e.g. two years of employment) of this Agreement; and
(v) and an option to purchase one hundred fifty thousand (150,000) shares of
common stock at one dollar ($1.00) per share, exercisable for a two year period
at any time following the three year anniversary (e.g. three years of
employment) of this agreement. Each of the options set forth in this Agreement
are exercisable by Xxxxxx provided that at such time Xxxxxx exercises any of
the options, he is currently employed by the Company or should he cease to be
employed by the company exercise any and all options within sixty (60) days
thereafter and he has, at all times prior to the exercise thereof, faithfully
and diligently performed his services as determined by the Board of Directors.
All stock issued pursuant to this paragraph will be restricted under Rule 144
of the Securities Act of 1933, unless the stock may be validly issued as
unrestricted stock pursuant to an effective registration statement.
(b) Performance Review. The Board of Directors shall review Xxxxxx'x
performance after six (6) months of employment and every six (6) months
thereafter for the purpose of reviewing Xxxxxx'x base salary for a possible
increase, depending on, among other things, such performance and the
profitability of the Company at that time.
(c) Bonuses. The Company shall pay bonuses to Xxxxxx, which are
payable within ninety (90) days of the Company's year end, in the following
manner:
(i) One percent (1%) of gross sales (excluding actual and
pending sales under existing purchase orders as of the
date hereof) during any one year period upon achieving the
budgeted gross sales revenue which has been approved by
the Board of Directors;
(ii) One percent (1%) of gross sales upon achieving budgeted
earnings before income tax, which has been approved by the
Board of Directors;
(iii) Ten percent (10%) of the earnings before income tax which
exceeds the budgeted earnings before income tax.
(d) Salary and bonus caps. Notwithstanding paragraphs 2(a), (b) and
(c) above, the compensation (salary and bonuses) to Xxxxxx shall not exceed:
Three hundred thousand dollars ($300,000.00) during the first year of this
Agreement; Four hundred thousand dollars ($400,000.00) during the second year
of this Agreement; Four hundred fifty thousand dollars
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($450,000.00) during the third year of this Agreement.
3. Benefits. After the Trial Period (as defined below), Xxxxxx shall
be entitled to the following benefits:
(a) Xxxxxx shall be entitled to participate in all benefit
programs established by the Company from time to time in accordance with
Company's Benefit Package "B".
(b) Xxxxxx shall be entitled to vacation as follows:
Two (2) weeks each during years two and year three of this
Agreement;
Three (3) weeks each during years four through eight;
Four (4) weeks each from years nine and each year thereafter.
Vacation time may not be accumulated and shall expire after each
year unless the parties hereto agree otherwise in writing.
(c) Xxxxxx shall be entitled to seven (7) paid holidays, as
designated by the Company, and three (3) personal days for each year
of employment.
(d) The Company shall reimburse Xxxxxx for all reasonable
out-of-pocket expenses incurred by him in connection with the
performance of his duties hereunder upon the presentation of
appropriate documentation therefor in accordance with the Company's
regular procedures. Such reimbursement shall include automobile
rentals, hotel, meals, travel and entertainment expenses (but not
personal) based upon approved Company travel itinerary or as may be
established in the Company's policies and procedures manual.
4. Term. This Agreement shall become effective as of the date set
forth above, and shall continue for a term of three (3) years, subject to
earlier termination in accordance with this Agreement. This Agreement shall be
renewable and re-negotiated ninety (90) days before the end of Term.
5. Disability. If Xxxxxx shall be unable to substantially perform the
duties required of him pursuant to this Agreement due to any injury, illness or
disease as determined by an independent physician mutually acceptable to the
Company and Xxxxxx, and such inability shall continue for a period of ninety
(90) days, the Company shall have the right to terminate this Agreement upon
written notice to Xxxxxx and such termination shall be deemed termination for
cause. Notwithstanding any such termination, Xxxxxx shall be entitled to
receive the base salary and benefits accrued or accruable to Xxxxxx pursuant to
this Agreement up to the date of such termination, The Company will provide
insurance disability coverage on the same conditions as other senior
management.
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6. Death. In the event of Xxxxxx'x death during the term of his
employment, this Agreement shall terminate as of the date of death. Xxxxxx'x
beneficiary or estate shall be entitled to receive any salary, stock options,
bonuses, vacation pay, or other benefits which have accrued or are accruable
pursuant to this Agreement through the date of death.
7. Termination for Cause. The Company shall have the right to
terminate the employment of Xxxxxx hereunder for cause at any time if:
(a) Xxxxxx is convicted by a court of competent and final
jurisdiction of any crime (whether or not involving the Company) which
constitutes a felony in the jurisdiction involved; or
(b) Xxxxxx commits any act of fraud, embezzlement or similar
conduct against or shall breach a fiduciary obligation to the Company, or shall
be habitually drunk in public or otherwise act in such a manner as to adversely
reflect upon the reputation of the Company; or
(c) Xxxxxx fails or refuses to perform in any material respect
any of his duties and responsibilities as required by this Agreement.
Any termination for cause may be effected by delivery to Xxxxxx of a
written notice of termination, stating with the reason for termination, and
shall be effective as of the date of such notice. Upon termination for cause,
any salary, stock options, bonuses, vacation pay, or other benefits which have
accrued or are accruable through the date of termination shall be paid to
Xxxxxx.
8. Termination Without Cause. The Company may terminate Xxxxxx'x
employment hereunder at any time within the first ninety (90) days (the "Trial
Period") with five (5) days prior notice. Subsequent to such Trial Period, the
Company may terminate Xxxxxx'x employment hereunder without cause at any time
upon ninety (90) days' prior written notice. Upon any such termination without
cause after two years of continuous employment of Xxxxxx, Xxxxxx shall be
entitled to receive a lump sum payment equal to the base salary and guaranteed
bonus which would have been payable to Xxxxxx for the 12 months following the
date of termination as mutually agreed by the parties in writing.
For purposes of this Agreement, the following shall be deemed a
termination of Xxxxxx'x employment hereunder without cause:
(a) Xxxxxx'x substantive responsibilities are materially changed
without the prior approval or ratification of Xxxxxx.
(b) All or substantially all of the assets of the Company are sold,
or there is a "Change in Control" of the Company, unless in conjunction with
such sale or Change in Control this Agreement is extended through a date at
least three years from the date of the sale or Change
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in Control.
For purposes of this Agreement, "Change in Control" shall mean a
change in control of a nature that would be required to be reported in response
to Item 5(f) of Schedule 14A of Regulation 14A promulgated under the Securities
Exchange Act of 1934 as in effect on the date of this Agreement. Without
limitation, such a change in control shall be deemed to have occurred if and
when (a) any "person" (as such term is used in Sections 13(d) and 14(d)(2) of
the Securities Exchange Act of 1934) other than a person currently holding such
a position, is or becomes a beneficial owner, directly or indirectly, of
securities of the Company representing twenty-five percent (25%) or more of the
combined voting power of that company's then outstanding securities, or (b)
during any period of twelve (12) consecutive months, commencing before or after
the date of this Agreement, individuals who at the beginning of such twelve
(12) month period were directors of the Company cease for any reason to
constitute at least thirty percent (30%) of the Company's Board of Directors.
9. Termination by Xxxxxx. Xxxxxx may terminate his employment
hereunder, subject to the restrictive covenants hereinafter stated, upon giving
ninety (90) days prior written notice to the Company, in which event Xxxxxx'x
salary and benefits shall be continued through the date of termination.
10. Certain Restrictive Covenants.
(a) Xxxxxx recognizes and acknowledges that confidential
information may exist, from time to time, with respect to the business of the
Company. Accordingly, Xxxxxx agrees that he will not disclose any confidential
information relating to the business of the Company to any individual or entity
during his employment or hereafter for a period of two (2) years. The
provisions of this paragraph shall not apply to information which is or shall
become generally known to the public or the trade (except by reason of Xxxxxx'x
breach of his obligations hereunder), information which is or shall become
available in trade or other publications (except by reason of Xxxxxx'x breach
of his obligations hereunder), and information which Xxxxxx is required to
disclose by order of a court of competent jurisdiction (but only to the extent
specifically ordered by such court and, when reasonably possible, if Xxxxxx
shall give the Company prior notice of such intended disclosure so that it has
the opportunity to seek a protective order if it deems appropriate).
(b) As used in this Agreement, "confidential information" shall
mean studies, plans, reports, survey, analyses, sketches, drawing, notes,
records, unpublished memoranda or documents, and all other non-public
information relating to the Company's manufacturing and marketing activities,
including, shop practices, equipment, research data, marketing and sales
information, personnel data, customer lists, employee lists, financial data,
plans and all other techniques, know how and trade secrets which presently or
in the future are in the possession of the Company.
(c) All memoranda, notes, records, reports, sketches,
photographs, drawing,
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plans, paper or other documents made or compiled by or made available to Xxxxxx
in the course of employment hereunder are and shall be the sole and exclusive
property of the Company and shall be promptly delivered and returned to the
Company by Xxxxxx immediately upon termination of employment with the Company.
(d) For so long as he is employed by the Company, and for a
period of two years hereafter, Xxxxxx shall not engage (either as principal,
agent or consultant, or through any corporation, firm or organization in which
he may be an officer, director, employee, controlling stockholder, partner,
member, or with which he is otherwise affiliated) directly or indirectly, in
any activity or business anywhere in the State of Florida or in any state in
which the Company transacts business and which is engaged in the recycling or
reconverting of polystyrenes without the Company's prior written consent.
11. Injunction. Xxxxxx acknowledges that the services to be rendered
by him are of a special, unique and extraordinary character, and, in connection
with such services, he will have access to confidential information vital to
the Company's business. Accordingly, Xxxxxx consents and agrees that if he
violates any of the provisions of paragraph 10 hereof, the Company would
sustain irreparable harm and, therefore, in addition to any other remedies
which may be available to it, the Company shall be entitled to an injunction
restraining Xxxxxx from committing or continuing any such violation of this
Agreement. Nothing in this Agreement shall be construed as prohibiting the
Company from pursuing any other remedy or remedies including, without
limitation, recovery of damages.
12. Modification or Elimination of Restrictions. In the event that any
of the restrictions contained in paragraphs 10 or 11 hereof shall be held to be
in any way an unreasonable restriction on Xxxxxx, then the court so holding may
reduce the territory and/or period of time in which such restriction operates,
or modify or eliminate any such restriction to the extent necessary to render
such paragraphs enforceable.
14. Entire Agreement. This Agreement represents the entire Agreement
between the parties with respect to the subject matter hereof and shall not be
modified or affected by any offer, proposal, statement or representation, oral
or written, made by or for either party in connection with the terms hereof.
This Agreement may not be amended except by an instrument in writing signed by
the Company and Xxxxxx.
15. Serviceability. Should any provision or clause hereof be held to
be invalid, such invalidity shall not affect any other provision or clause
hereof which can be given effect without such invalid provision. This Agreement
shall inure to the benefit of and be binding upon the Company, its successors
and assigns and upon Xxxxxx and his heirs, executor, administrators, or other
legal representatives.
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16. Laws Applicable. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth above.
INTERNATIONAL FOAM SOLUTIONS, INC.
XXXXXXX XXXXXX
/s/ XXXXXXX XXXXXX By: /S/ XXXXXX XXXX
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SS# ###-##-#### XXXXXX XXXX, CEO
Attest
by: /s/
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NAME
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