Exhibit 2(vii)
EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT made as of August 13, 1999, between Superior Chemical
& Supply, Inc., a Kentucky corporation, with its principal office located at
0000 Xxxx Xxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxxxx 00000 (the "Company") and Xxxxxxx
Xxxxxx, an individual residing at 0000 Xxxxxxx Xxx, Xxxxxxx Xxxxx, Xxxxxxxx
00000 ("Xxxxxx").
WHEREAS, the Company wishes to employ Xxxxxx as President of the Company
and the Company desires to ensure the continued availability to the Company of
Xxxxxx'x services in such capacity, and Xxxxxx wishes to accept such employment
and is willing to render such services, all upon and subject to the terms and
conditions contained in this Agreement.
Accordingly, the parties agree as follows:
1. Employment
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The Company hereby employs Xxxxxx to work on a full-time basis as the
Company's President on the terms and conditions contained herein and Xxxxxx
agrees to such terms and conditions of employment. Xx. Xxxxxx' place of
employment shall be at the Company headquarters in the State of Kentucky and Xx.
Xxxxxx shall not be required to travel on business outside the State of
Kentucky.
2. Term of Employment
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Unless earlier terminated in accordance herewith, the term of Xxxxxx'x
employment hereunder shall be for a period of five (5) years commencing on
August 13, 1999, and ending on August 13, 2003. The term of employment may be
renewed beyond August 13, 2003 upon the mutual agreement of the Company and
Xxxxxx for two (2) additional periods of one (1) year each.
3. Duties
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Xxxxxx shall serve the Company as President and Chief Executive Officer and
shall be responsible for all executive and operations management of the Company
and shall perform the duties and responsibilities set by the Board of Directors
for this position from time to time, and Xxxxxx shall at all times comply with
the employment policies established by the Board of Directors of the Company.
During his employment by the Company, Xxxxxx shall devote his full time and
efforts to the Company.
4. Compensation and Benefits
-------------------------
As full compensation to Xxxxxx for the performance of his services and his
acceptance of the responsibilities described herein, the Company agrees to pay
Xxxxxx the following compensation and other benefits:
(a) Base Salary. A total annual base salary of Forty Thousand Dollars
($40,000), payable in accordance with the Company's usual payroll policies and
procedures.
(b) Other Benefits. Xxxxxx will also be eligible to receive such
other benefits as are made available generally to the Company's executive
management.
(c) Travel and Entertainment Expenses. The Company shall reimburse
Xxxxxx for his travel and entertainment expenses incurred in connection with the
performance of his duties under this Agreement, provided that such expenses are
incurred in accordance with Company policies, are reasonable in type and amount
and that Xxxxxx properly accounts for such expenses to the Company in accordance
with the Company's practices.
(d) Vacation. Xx. Xxxxxx shall be entitled to up to six (6) weeks
paid vacation annually during the term of this Agreement.
5. Confidentiality: Intellectual Property; Non-Compete.
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Xxxxxx, in order to induce the Company to enter into this Agreement, hereby
agrees as follows:
(a) Xxxxxx will keep confidential and not use, divulge or otherwise reveal
during the term of his employment or after termination thereof, any trade
secrets or other confidential information relating to the business or financial
affairs of the Company.
(b) The Company shall require that all of its employees sign an
intellectual property agreement, requiring that employees preserve and protect
as property of the Company the confidential, proprietary, technical and business
information of the Company. Xxxxxx agrees to execute such an agreement and to
comply with its terms.
(c) All papers, books and records, financial documents, computer files and
customer lists relating to the business and affairs of the Company and all
copies thereof, shall be the sole and exclusive property of the Company. Xxxxxx
agrees prior to termination of his employment by the Company to turn over to the
Company all such documents which may be in Xxxxxx'x possession or under his
control.
(d) During the term of this Agreement and for a period beginning on the
date that Xxxxxx'x employment is terminated, regardless of the reason for the
termination, and ending Twenty-Four (24) months after the date on which Xxxxxx'x
employment is terminated, Xxxxxx shall not, without the prior written consent of
the Company or any successor to the Company, compete, directly or indirectly,
with the Company or any successor to the Company in any
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Competing Business, unless Xxxxxx is terminated by the Company without cause (as
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defined in Section 7(b) herein) in which case Xxxxxx will not be subject to any
noncompetition obligations and the terms of this paragraph shall not apply. For
purposes of this agreement, a Competing Business is any business located in
North America which engages in the marketing, distribution and/or sale of
janitorial, sanitary and cleaning supplies, whether or not manufactured by such
company.
(e) During the term of this Agreement and for a period beginning on the
date that Xxxxxx'x employment is terminated, regardless of the reason for the
termination, and ending Twenty-Four (24) months after the date on which Xxxxxx'x
employment is terminated, Xxxxxx shall not, without the prior written consent of
the Company or any successor to the Company, directly or indirectly, for himself
or another person, induce or attempt to induce any client or customer of the
Company or any successor to terminate his or her relationship with any of those
entities, unless Xxxxxx is terminated by the Company without cause (as defined
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in Section 7(b) herein) in which case Xxxxxx will not be subject to any
noncompetition obligations and the terms of this paragraph shall not apply.
(f) Xxxxxx agrees that any breach or threatened breach of the provisions
of this Section 6 will cause irreparable damage to the Company and that money
damages will not necessarily provide an adequate remedy to the Company. Thus,
the parties agree that the Company, in addition to their remedies at law, shall
have the right and remedy to have the provisions of this Section 6 specifically
enforced by any court having jurisdiction.
6. Termination of Employment
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(a) Xxxxxx'x Voluntary Termination
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In the event that Xxxxxx voluntarily terminates his employment with the
Company during the term of this Agreement, Xxxxxx shall have no right to any
further salary, bonus, stock options, employee benefits or any other
compensation from the Company; provided, however, that nothing in this Section
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7(a) shall be construed to limit Xxxxxx'x rights to any compensation of any kind
earned prior to the date of such termination.
(b) Termination by the Company
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The Company may terminate Xxxxxx'x employment pursuant to the terms of this
Agreement at any time with or without cause by giving written notice to Xxxxxx,
in accordance with Section 10(g), below, and such termination shall be effective
in accordance with such Section 9(g). Upon any such termination for cause,
Xxxxxx shall have no right to any further compensation or employee benefits from
the Company.
For purpose of this Section 7(b), "cause" shall mean that (i) Xxxxxx is
convicted with respect to the commission of a crime involving moral turpitude;
(ii) Xxxxxx has been guilty of gross or willful misconduct in connection with
his duties hereunder or (iii) Xxxxxx has failed to
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follow the lawful, material instructions of the Company's Board of Directors.
Throughout the term of his employment with the Company, Xxxxxx shall remain
an employee at will, and his employment may be terminated for any reason by the
Company at any time. If Xxxxxx is terminated by the Company without cause he
shall be entitled to certain minimum severance pay ("Minimum Severance"), with
any additional severance pay above the Minimum Severance to be solely within the
discretion of the Board of Directors. In the event of Xxxxxx'x voluntary
termination under Section 7(a) above, or his termination for cause as described
above, Xxxxxx shall be entitled to no Minimum Severance. In the event of a
termination without cause, Xxxxxx shall receive the following Minimum Severance,
under the terms set forth above:
(i) Termination without cause after commencement of his employment: six
weeks salary and benefits;
(ii) Termination without cause after twelve (12) months of employment: two
months salary and benefits;
(iii) For every six (6) month period beyond the initial twelve (12) months
he shall be employed by the Company, Xxxxxx shall be entitled to an
additional two (2) weeks of salary and benefits as Minimum Severance;
up to a maximum Minimum Severance of twelve months salary and
benefits;
(iv) All shares of Common Stock of Enviro-Clean of America, Inc. reserved
for issuance to Xxxxxx under the Stock Purchase Agreement dated as of
August 1, 1999 shall immediately vest and be delivered to Xxxxxx.
(c) Death or Disability
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This Agreement and the obligations of the Company hereunder will terminate
upon the death of Xxxxxx.
In the event of Xxxxxx'x permanent disability, the Company may terminate
this Agreement. For purposes of this Section 7(d), permanent disability shall
mean that for a period of 90 days in any 365-day period Xxxxxx is incapable of
substantially fulfilling his duties as set forth in Section 3 above because of
physical, mental or emotional incapacity resulting from injury, sickness or
disease.
7. Representations and Warranties
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Xxxxxx hereby represents and warrants to the Company that his entering into
this Agreement, and the obligations and duties undertaken by him hereunder, will
not conflict with constitute a breach of, or otherwise violate the terms of, any
other agreement to which he is a party.
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Xxxxxx hereby agrees to indemnify the Company for any losses, costs or
other expenses or damages incurred by the Company in the event that Xxxxxx has
breached this representation.
8. Assignment
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This Agreement and any rights (including compensation) hereunder shall not
be assigned or transferred by Xxxxxx to any other person. The Company, however,
shall have the right to assign its rights hereunder to any affiliate of the
Company.
9. Miscellaneous
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(a) All payments provided for in this Agreement shall be paid by check
from the Company's general funds. Any withholding and/or any other payroll taxes
with respect to any payments provided for in this Agreement shall be deducted by
the Company as appropriate and as may be required by law.
(b) If any provision of this Agreement shall, for any reason, be judged by
any court of competent jurisdiction to be invalid or unenforceable, such
judgment shall not affect, impair or invalidate the remainder of this Agreement.
(c) This Agreement constitutes the entire understanding between the
parties and supersedes all prior agreements, arrangements and understandings
relating to the subject matter hereof.
(d) This Agreement may be amended, modified, superseded or cancelled, and
any of the terms, covenants or conditions hereof may be waived, only by a
written instrument executed by the parties hereto, or in the case of a waiver of
any right or benefits provided hereunder, by the party waiving compliance.
(e) This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York and the parties hereto consent
to the jurisdiction of the Courts located in the State of New York to resolve
any disputes which may arise under this Agreement.
(f) No delay or omission or failure to exercise any right or remedy
provided for herein shall be deemed a waiver thereof or acquiescence in the
event giving rise to such right or remedy, and every such right and remedy may
be exercised from time to time and so often as may be deemed expedient by the
party exercising such right or remedy.
(g) All notices given pursuant to the provisions of this Agreement shall
be in writing and shall be sent by certified mail, postage prepaid, or
recognized overnight courier service, or delivered by hand or by fax, shall be
effective upon the earlier of (i) two (2) days from the date deposited with the
mail or overnight courier service or (ii) actual receipt, and shall be sent to
the parties at the following addresses:
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If to the Company: Enviro-Clean of America, Inc.
000 Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx, President
with a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Xxxxxxxxxx, Ocko & Monk, LLP
00 Xxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
If to Xxxxxx: Xxxxxxx Xxxxxx
0000 Xxxxxxx Xxx
Xxxxxxx Xxxxx, Xxxxxxxx 00000
(h) The parties to this agreement expressly agree that any and all
disputes, which may arise out of or as a result of this agreement, shall be
submitted to binding Arbitration in accordance with the Rules set forth by The
American Arbitration Association. The parties further agree to be bound by the
result of the arbitration.
(i) The Company shall indemnify Xxxxxx and hold him harmless to the
fullest extent permitted by the By-Laws of the Company and Nevada law, for any
acts or decisions made by him in good faith while performing services for the
Company as an employee and/or agent of the Company, and in addition thereto,
shall use its best efforts to obtain insurance coverage for him under any
insurance policy now in force or hereinafter obtained during the term of this
Agreement covering the officers and directors of the Company against lawsuits as
Xxxxxx and/or agent of the Company against lawsuits as Xxxxxx and/or agent of
Company, to the extent it is deemed advisable by the Company's Board of
Directors to obtain such insurance for the Company's officers and directors and
such insurance can be obtained at a cost deemed reasonable by the Board. The
Company will pay all expenses, including attorneys' fees, actually and
necessarily incurred by the Company or Xxxxxx in connection with the defense of
any such act, suit or preceding and in connection with any appeal thereon,
including costs of court settlement.
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IN WITNESS WHEREOF, the parties have signed this Agreement on the dates set
forth below, with effect as of the date first above written.
SUPERIOR CHEMICAL & SUPPLY, INC.
By: _________________________ _________________________
Xxxxxxx Xxxxxx Xxxxxxx Xxxxxx
Chairman of the Board of Directors
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