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EXHIBIT 10.1
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AGREEMENT made as of the 28th day April 1997 between Western
Environmental, Inc., a Florida Corporation, with principal offices at 0000
Xxxxxxxx Xxxx, Xxxxxxxxxx Xxxxx, Xxxxxxx 00000 (hereinafter referred to as the
"Company"); and Xxxxxxx X. Xxxxx, residing at 0000 Xxxx Xxxxx, Xxxxxx, Xx 00000
(hereinafter referred to as the "Employee").
WITNESSETH:
WHEREAS, the Employee shall be employed by the Company as Chief Executive
Officer and
WHEREAS, the Employee has the requisite experience, background and skill
and is willing to formalize his relationship with the Company on the terms and
subject to the conditions herein contained.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereby agrees as follows:
1. Recitals confirmed. All of the recitals hereinabove stated are
confirmed by all of the parties hereto as being in all respects true and correct
and the same are hereby incorporated herein by reference into this agreement
(the "Agreement").
2. Employment. The Company hereby confirms its employment of the Employee
and the Employee hereby confirms his employment by the Company as the Chief
Executive Officer of the company. The Employee shall, in the performance of his
duties, be at all times subject to the direction, supervision and authority of
the Company's Board of Directors.
3. No Breach of Obligation. The Employee represents and warrants to the
Company that he has the requisite skill and experience and is ready, willing and
able to perform those duties attendant to the position for which he is hired or
which may be assigned to him; and that his entry into this Agreement with the
Company does not constitute a breach of any prior agreement between the Employee
and any person, firm or corporation contain any restriction or impediment to the
ability of the Employee to perform those duties for which he was hired or
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which may be assigned to or reasonably expected of him. The Company acknowledges
that the employee has other business interest.
4. Services. During the full term of this Agreement, the Employee shall
perform to the best of his ability the following services and duties, in such
manner and at such time as the Company may direct; the following being included
by way of example and not by way of limitation:
(a) The Employee shall, together and in connection with the other
executive officers of the Company, supervise and direct all administrative
aspects of and share responsibility for the conduct and supervision of all
administrative areas of the Company's operation;
(b) The Employee shall aid and assist the administration of the
Company's sales, marketing programs and other similar and related aspects of the
Company's operations;
(c) The Employee shall promote the Company's relations with its
clients, employees, potential clients and others;
(d) The Employee shall consult with and advise the other officers
and employees of the Company, either orally, or, at the request of the company,
in writing, with respect such matters as the Board of Directors shall be
requested from time to time, relating to the management and operation of the
Company, sales, marketing and the institution of programs and systems designed
to increase the efficiency of the Company's business and overall management and
operation of the Company.
5. Exclusivity. The Employee agrees that during the term of this Agreement
he will impart and devote substantially all of his time, energy, skill and
attention to the performance of his duties hereunder. This paragraph shall not
exclude the Employee from serving as an executive officer and/or serving on the
Board of Directors of another company or companies not
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engaged in similar business ventures not in direct competition with the company
or subsidiaries if such investments shall be of a passive nature or shall be in
securities of a publicly owned entity.
6. Place of Performance. The Employee agrees to perform his duties
hereunder at the offices of the Company, in Fernandina Beach, Florida, and
agrees, to the extent that it shall be determined necessary and advisable in the
sole discretion of the Company's Board of Directors to travel to any place in
the United States or to any foreign country where his presence is or may
reasonably be temporarily required for the performance of his duties hereunder.
7. Compensation. The Company hereby agrees to compensate the Employee and
the Employee hereby accepts for the performance of the services by the Employee
and duties required by the Employee under Paragraph 3 hereof and his other
obligations hereunder as follows:
(a) Salary. Subject to review and upward adjustment from time to
time by the Board of Directors, the Company shall pay to the Employee an annual
salary of eighty-seven thousand dollars, ($87,500) during the first year of the
term of this Agreement. During the second and the third year, the Employee's
salary will increase ten percent (10%) per year. Such salary shall be payable
monthly in accordance with the regular payroll practice of the company;
(b) Bonus. The Employee shall be entitled to participation in a
bonus or other incentive compensation, profit sharing or retirement plan that
the Company shall institute or make generally available to its executives;
(c) Expenses, Accommodations, Insurance, and Medical Benefits. The
Company shall pay to the Employee and/or furnish the Employee with the expenses,
accommodations, insurance and medical benefits referenced in Paragraph 10 of
this Agreement; and
(d) Vacation and Automobile. The Employee shall be entitled to the
use of an
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automobile and vacations as provided in Paragraph 11 of this Agreement;
(e) Severance. The Company shall pay the Employee the severance
compensation enumerated in Paragraph 15(c) of this Agreement
8. Representation and Warranties of the Employee. By virtue of his
execution hereof, and in order to induce the Company to enter into this
Agreement, The Employee hereby represents and warrants as follows:
(a) The Employee is not presently actively engaged in any business,
employment or venture which is or may be in conflict with the business of the
Company;
(b) The Employee has full power and authority to enter in this
Agreement, to enter into the employ of the Company and to otherwise perform this
Agreement in the time and manner contemplated; and
(c) The Employee's compliance with the terms and conditions of this
Agreement in the time and manner contemplated herein will not conflict with any
instrument or agreement pertaining to the transaction contemplated herein, and
will not conflict in, result in a breach of or constitute a default under any
instrument to which he is a party.
9. Representation and Warranties of the Company. By virtue of the
execution of this Agreement, the Company hereby represents and warrants to the
Employee as follows:
(a) the Company has full power, right and authority to execute and
perform this Agreement in the time and manner contemplated; and
(b) The execution and performance of this Agreement will not result
in a breach of or violate the provisions of any contract or agreement to which
the Company is a party.
10. Expenses, Accommodations, Insurance, Medical Benefits, and etc.
(a) The Company and the Employee hereby agree and consent that
during the term of this Agreement, the Company shall furnish the Employee
memberships as shall be suitable to
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the character of his position and adequate for and reasonably designed to
enhance the performance of his duties. The Company and the Employee further
agree that the Employee shall receive reimbursement for all expenses incurred by
the Employee in connection with the performance of his duties hereunder subject
to compliance with the Company's procedures; and the Company shall pay to the
Employee directly or reimburse the Employee for all other reasonable, necessary
and proven expenses and disbursements incurred by the Employee for and on behalf
of the Company in the performance of the Employee's duties during the term of
this Agreement.
(b) The Employee agrees and consents to being the subject of such
policy or policies of disability income and/or key man insurance as the Company
shall, in its sole discretion, elect to carry on Employee's life. The Company
shall be the owner and beneficiary of any such policy and/or policies and shall
pay premiums thereon; and the Employee agrees and consents to such arrangement.
Notwithstanding the foregoing, and so long as adequate and customary
arrangements are made with respect thereto, the Employee's spouse and/or
children may be named co-beneficiaries on such split-dollar insurance policies
or policies as the Employee reasonably desires. The Company shall have the right
and option of selecting the carrier(s) of such insurance and the form thereof
(i.e. whole life, term, etc.). Upon the termination of the Employee's employment
for any reason provided in this Agreement, he shall have the right to purchase
any and all policies owned by the Company on his life, subject to the terms of
this Agreement, upon paying the Company within (30) days of such termination an
amount equal to cash value, including the cash value of dividend additions or
deposits, if any, of such policy as of the date such right is exercised, less
the amount of any policy loan with accrued interest. The Company, upon such
payment, shall execute the instruments necessary to transfer such policies to
the Employee.
11. Vacations and Automobile. During the term of this Agreement, the
Employee shall
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receive four (4) weeks of vacation per year at such time as he shall elect. The
Employee hereby agrees to utilize his best efforts to take his vacation time in
non-consecutive weeks, The Employee shall be entitled to accumulate any unused
vacation time from year to year during of the term of this Agreement; and upon
termination shall be paid the full value thereof at the salary rate in effect on
the date of termination. The Employee shall be Entitled to the use of an
automobile and all expense necessary to operate and maintain such auto.
12. Proprietary Rights. The Employee shall at no time before or after the
termination of his employment hereunder use or divulge or make known to anyone
without the express written consent of the Board of Directors of the Company
(except to those duly authorized by Company to have access thereof) any
marketing systems, programs or methods, customer or client lists, computer
programs, configurations, systems or procedures, ideas, formulae, inventions,
discoveries, improvements, secrets, processes or technical or other information
of the Company or any accounts, customer or client lists, transactions of
business affairs of the Company. All ideas, marketing systems, computer
programs, configurations, systems or procedures, programs or methods, formulae,
inventions, discoveries, improvements, secrets or processes whether or not
patentable or copyrightable, made or developed by the Employee during the term
of this Agreement or within one year after its expiration or termination and
relating to the business of the Company shall be the exclusive property of the
Company, whether or not any claim of the Employee to compensation under
Paragraph 7 hereof have been or will be satisfied, and the Employee agrees to
provide the Company at its request and expense such instruments and evidence as
it may reasonably request to perfect, enforce and maintain the Company's rights
to such property. At the conclusion of his employment by the Company, the
Employee shall forthwith surrender to the Company all letters, brochures,
agreements and documents of every character relating to the business affairs and
properties of the Company and
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then in his possession and shall not, without the company's prior written
consent, retain or disclose any copies thereof
13. Disability. If during the term of this Agreement and in the opinion of
the Board of Directors of the Company as confirmed by competent medical
evidence, the Employee shall become physically or mentally incapacitated to
perform his duties for the company hereunder for a continuous period then the
following shall apply (a) for the first year of such disability the Employee
shall receive his full salary; (b) for the second and third year of the
Employee's disability the Employee shall receive fifty (50%) percent of his full
salary; (but in no event beyond the termination date of this agreement), the
Employee shall receive Fifty (50) percent of his full salary. Upon the
Employee's resumption of full employment, he shall commence again to receive his
full salary. The Employee hereby agrees to submit himself for appropriate
medical examination by his personal physician as necessary to implement and give
effect to the purposes of this paragraph 13. In event of termination as provided
herein, the full term compensation provisions of paragraph 8 shall apply.
14. Competition. During the three (3) year term of this agreement, or upon
the termination of his employment, whichever event shall occur later and for a
period of twenty-four (24) consecutive months thereafter, the Employee shall
not, without the prior express written consent of the Company, engage (either as
an employee, consultant, agent proprietor, officer, director, partner, or
stockholder, of any corporation, firm or business) in any business which is in
direct competition of threatening to be in competition with the Company within
any other state or other jurisdiction in which the Company is engaged in such
operations.
The Employee further convenants that during the stated term of this
Agreement and for the twenty-four (24) month period thereafter, he will not
solicit any clients or customers, known by him to be clients or customers of the
Company, for competitive employment by the Company without cause or a
termination of the employment by the Employee because of breach of
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agreement by the Company.
15. Term and Termination. This Agreement shall be deemed to be effective
as of the date of its execution and shall continue in full force and effect
until the last day of the month after the third (3rd) anniversary thereof unless
sooner terminated as hereinafter set forth:
(a) Termination by the Company for Cause.
(1) The Company may terminate the Employee's employment for
cause (as defined in sub-paragraph (b) below) upon compliance with the
provisions of sub-paragraph (c). Upon such termination, the Company shall have
no further obligations to the Employee, except for the compensation or other
benefits due for a period prior to the date of Termination.
(2) "Cause" shall mean: (I) the Employee's willful and continued
failure to perform any of his duties with the Company (other than as a result of
the Employee's incapacity due to illness or injury, as defined in paragraph 13
after a demand for performance is delivered to the Employee by the board of
Directors (by a duly adopted resolution), which specifically identified the
manner in which the Board of Directors believes that the Employee has not
performed any of his duties; or (ii) the Employee's willful engaging in
misconduct which is materially injurious to the Company, monetarily or
otherwise. For purposes of this sub-paragraph (b), no act or failure to act on
the Employees part shall be considered "willful" unless the act of failure to
act by the Employee is done in bad faith and with absolute certainty that such
action or omission was not in or opposed to the best interest of the Company,
and any failure by the Employee to perform any of the Employee duties set forth
herein shall be conclusively deemed not to be a willful failure to perform where
the failure results from the Employee's illness or injury as set forth in a
written opinion of the Employee's personal physician.
(3) Termination for Cause shall be effected only if (I) the
Company has delivered to the Employee a copy of a Notice of Termination which
complies with Paragraph 16 hereof and which gives the Employee, at least thirty
(30) business days' prior notice, the
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opportunity, together with the Employee's counsel, to be heard before the Board
of Directors and (ii) the Board of Directors (after such notice and opportunity
to be heard), adopts a resolution concurred in but not less that two-thirds of
all of the directors of the Company then in office, including at least
two-thirds of all the directors who are not officers of the Company, that in the
good faith opinion of the Board of Directors, the Employee was guilty of conduct
set forth above in clause (I) and (ii) of the first sentence of subparagraph
(b), and specifying the particulars thereof in detail.
(b) Termination by the Employee for Good Reason.
(1) The Employee may terminate his employment for Good Reason
(as defined in subparagraph (b) below) by giving the Company a Notice of
Termination which complies with Paragraph 16 hereof. Upon such termination the
Employee shall have the rights described in sub-paragraph (c) hereof.
(2) "Good Reason": shall mean: (i) the Employee being removed,
or not being re-elected, as a director, or as President as described in
employment by the Company for Cause or Disability or by the Employee without
Good Reason; (ii) the assignment to the Employee, without his express written
consent, of any duties other than those permitted by Paragraph 4; (iii) the
Company's requiring the Employee to maintain his principal office or conduct his
principal activities anywhere other than at the Company's principal executive
offices, (iv) the failure of the Company to obtain the assumption and agreement
to perform this Agreement by any successor as contemplated in Paragraph 8
hereof; (v) repudiation by the Company of any material obligation of the Company
under Paragraph 7 hereof; or (vi) the delivery of a Notice of Termination by the
Company pursuant to paragraph 16(a)(3), above (except that the delivery of such
Notice shall be retroactively deemed not to constitute Good Reason within sixty
(60) days after the Board of Directors shall make the determination
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described in paragraph 16(a)(3) (after the opportunity to be heard provided for
therein) and such determination is not thereafter reversed by an arbitration
decision or final judgement of a court of competent jurisdiction.
(c) Termination by Change or Control. In the event the Company
experiences a Change of Control as hereinafter defined, the Employee shall have
the right and option, in his sole unfettered discretion, to declare this
Agreement breached by the Company. Upon the occurrence of such a course of
action, the Employee shall be entitled to receive all of the compensation and
remuneration provided in Subparagraph (c) of this Paragraph.
16.
(1) Change in Control. For purposes of this Agreement a Change in
Control will be deemed to have occurred
(a) if following (I) a tender or exchange offer for voting
securities of the Company, (ii) a proxy contest for the election of directors of
the Company or (iii) a merger or consolidation or sale of all or substantially
all of the business or assets of the Company, the directors of the Company
immediately prior to the initiation of such event cease to constitute a majority
of the board of directors of the Company upon the occurrence of such event or
within one year after such event, or
(b) if any "person" or "group" (as defined under the beneficial
ownership rules of Sections 13(d)(3) and 14(d)(2) of the Securities Exchange Act
of 1934 and Rule 13d3 thereunder) acquires ownership or control, or power to
control, twenty-five percent (25%) or more of the outstanding voting securities
of the Company without prior approval or ratification by a majority of the
Company's directors in office at the time of such event.
(d) The Employees Rights Upon Certain Termination. If the
Company terminates the Employee's employment hereunder, otherwise than for cause
pursuant to Paragraph 15(a) or for Disability pursuant to Paragraph 1, or if the
Employee terminates his
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employment for Good Reason pursuant to paragraph 15(b) or pursuant to Paragraph
15(c):
(1) The Company shall continue to pay to the Employee his
full base compensation, at the rate in effect on the Date of Termination, for
the period (the "Post Termination Period") from the Date of Termination until
April, 2000, the expiration date of this agreement. Notwithstanding anything to
the contrary which may be contained herein, if the Employee shall have died
prior to April, 2000, then, in such event, such payment of the Employee's full
base compensation pursuant to this paragraph 16 shall continue to be made to the
Employee's estate until April, 2000.
(2) The Employee shall be entitled to the full amount which
would have been due him under any bonus or profit sharing plan, or similar
arrangement, in which he was participating prior to the Date of Termination, for
the full three (3) year term of this Agreement, without any proration or
reduction because of the Employees not being employed during the full term;
(3) The Employee shall also be entitled to the full amount
of any contingent compensation or benefit which would have become vested had his
employment continued throughout the Post-Termination Period;
(4) The Company shall also pay to the Employee an amount
equal to all legal fees and expenses incurred by the Employee as a result of
such termination (including) all fees and expenses, if any, incurred in
contesting or disputing any such termination or in seeking to obtain or enforce
or retain any right or benefit provided by this agreement);
(5) The Company shall maintain full force and effect, for
the Employee; continued benefit throughout the Post-Termination Period, all life
and health insurance and other benefit plans in which the Employee was entitled
to participate immediately prior to the Date of Termination, provided that the
Employee continued
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participation is possible under the general terms and conditions of such plans.
If the Employee's participation in any such plan is barred for any reason
whatsoever, the Company shall arrange to provide the Employee with benefits
substantially similar to those which he is entitled to receive under such plan;
(6) The Employee shall not be required to mitigate the
amount of any payment provided for in this Paragraph 15 be reduced by any
compensation earned by the Employee in any manner after the Date of Termination.
16. Notice of Termination. Any purported termination of the Employee's
employment shall be communicated by written Notice of Termination from one party
to the other party hereto. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in specific detail
the facts and circumstance claimed to provide a basis for termination of the
Employee's employment under the provision so indicated. No purported termination
by the Company of the Employee's employment under the provision so indicated. No
purported termination by the Company if the Employee's employment shall be
effective if it is not affected pursuant to a Notice of Termination satisfying
the requirements of this paragraph 16.
17. Date of Termination. "Date of Termination" shall mean the date on
which Notice of Termination is given.
18. Successors; Binding Agreement.
(a) The Company shall require any purchased of all or substantially
all of the business of the Company, by agreement or form and substance
satisfactory to the Employee, to assume and agree to perform this Agreement in
the same manner and to the same extent that the Company would be required to
perform if no such purchase had taken place. If no agreement the full amount
will become due and payable. As used in this agreement,
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"Company" shall mean the Company as hereinabove defined, and any successor to
the Company's business or assets which executes and delivers this Agreement
provided for in the Paragraph 18(a) or which otherwise becomes bound by all the
terms and provisions of this Agreement by operation of law.
(b) This Agreement shall inure to the benefit of and to be
enforceable by the Employee's personal and legal representative, executors,
administrators, successors, heirs, distributees, devisees and legatees. If the
Employee had continued to live, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement to the
Employee's devisee, legatee or other designee or, if there be no such designee,
to his estate.
19. Arbitration. The Employee shall have the right to submit any
determination by the Board of Directors terminating his employment for Cause, or
any other dispute hereunder, to arbitration by a single arbitrator in
Jacksonville, Florida under the laws of the American Arbitration Association.
Any award in such arbitration may be enforced in any court of competent
jurisdiction.
20. Entire Agreement. This Agreement sets forth the entire understanding
of the parties with respect to the subject matter thereof, shall supersede any
prior agreements and understandings between the parties with respect to such
subject matter, and no statement, representation, warranty or covenant has been
made by either party except as expressly set forth herein.
21. Modification. This Agreement shall not be changed or terminated
orally. All of the terms and provisions of this Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective heirs and
personal representatives of the Employee and the successors and assigns of the
Company.
22. Laws of the State of Florida. This Agreement is being delivered in the
state of Florida
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and shall be construed and enforced in accordance with the laws of the State of
Florida, irrespective of the state of incorporation of the Company or the place
domicile or residence of the Employee. In the event of a controversy arising out
of the interpretation, construction, performance or breach of this Agreement,
the parties hereby agree and consent to the jurisdiction and venue of the
Circuit Court of the State of Florida, Xxxxx County and/or the United Stated
District Court for the Northern District of Florida and further agree and
consent that personal service or process in any such action or proceeding
outside of the County of Xxxxx shall be tantamount to service in person within
the County of Xxxxx and Shall confer personal jurisdiction upon either of said
courts.
23. Notices. Any notice to be given by any party hereunder to any other
shall be in writing, mailed by certified or registered mail, return receipt
requested, shall be addressed to the other at his address as hereinbefore stated
or to such other address as may have been furnished by any party to the other in
writing, and shall be deemed to be given on the date of mailing thereof in
accordance with the foregoing.
24. Additional Instruments. Each of the parties shall from time to time,
at the request of the others, execute, acknowledge and deliver to the other
party any and all further instruments that may be reasonably required to give
full effect and force to the provisions of this Agreement
25. Originals. This Agreement may be executed in counterparts each of
which so executed shall be deemed an original and constitute one and the same
agreement.
26. Address of Parties. Each party shall at all time keep the other
informed of its principal place of business or residence if different from that
stated herein, and shall promptly notify the other of any change, giving the of
the new principal place of business or residence.
27. Modification and Waiver. A modification or waiver of any of the
provisions of this Agreement shall be effective only if made in writing and
executed with the same formality
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as this Agreement. The failure of any party to insist upon strict performance of
any of the provisions of this Agreement shall not be constructed as a waiver of
any subsequent default of the same or similar nature or of any other nature or
kind.
28. Remedies on Breach. The Employee hereby agrees that it may not be
possible for the Company to be adequately compensated in damages for any breach
by the Employee of any of the representations, warranties, terms or any
conditions contained in this Agreement and accordingly the Employee hereby
agrees and consents that in the event of any such breach, the Company, in
addition to any other remedies it may have, shall be entitled to injunction or
other equitable relief restraining such breach.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
ATTEST:
WESTSTAR ENVIRONMENTAL, INC.
BY: /s/ XXXXXXX X. XXXX BY: /s/ XXXXXXX XXXXX
------------------------- --------------------------
Xxxxxxx X. Xxxx Xxxxxxx Xxxxx
Secretary
(Corporate Seal)
[CORPORATE SEAL]
BY: /s/ XXXXXXX X. XXXXX
--------------------------
Xxxxxxx X. Xxxxx, Employee
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