EXHIBIT 10.18
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made the 28TH day of
February, 2001, by and between Wedco, Inc., a New Jersey corporation (the
"Company"), a wholly-owned subsidiary of ICO, Inc., a Texas corporation ("ICO"),
and Xxxx Xxxxxxxxx, a Texas resident (the "Employee"), to be effective the 15th
day of February, 2001 (the "Effective Date").
WHEREAS, the Company is engaged in the business of, among other things,
providing petrochemical processing services;
WHEREAS, the Employee is being engaged as Senior Vice President and
Controller; and
WHEREAS, the Company desires to retain the skill, knowledge and
expertise of the Employee in the operation of its business, and Employee wishes
to provide such skill, knowledge and expertise to the Company on the terms,
covenants, provisions, and conditions herein set forth.
NOW, THEREFORE, in consideration of the covenants and agreements
contained in this Agreement and other good and valuable consideration, the
receipt and sufficiency of which are expressly acknowledged by each party, the
parties hereto agree as follows:
1. Nature and Place of Employment. The Company hereby hires and employs
the Employee to perform such duties as may from time to time be
specified by the Company or ICO. Employee hereby accepts such hiring
and employment with the Company. Such duties shall be rendered at
Company's present place of business in Houston, Texas, at ICO's office
in Houston, Texas, or at such other places as the Company may direct
from time to time.
2. Standard of Performance. Employee agrees that he will faithfully,
expeditiously, and to the best of his ability, experience, and talent,
perform all of the duties that may be reasonably required of and from
him to the satisfaction of, and according to the standards set forth
by, the Company and shall devote substantially all of his business time
and attention to the affairs of the Company.
3. Term. This Agreement shall continue for a term of one (1) year from the
Effective Date set out above. Said term of this Agreement shall be
extended automatically from day to day until such time as either party
shall give written notice to the other that no further such automatic
extensions shall occur, in which event this Agreement shall terminate
12 months after such notice has been received.
4. Compensation. For the services to be rendered to Company pursuant to
this Agreement, Company shall enter into this Agreement and pay to
Employee a salary in the amount of One Hundred Forty Thousand Dollars
and no/100 ($140,000.00) per annum, less all required deductions,
including but not limited to, federal withholding, social security, and
other taxes, which salary shall be payable semi-monthly on the
Company's regular payroll schedule. During the term of this Agreement,
Employee's salary shall be reviewed at least annually. As additional
consideration, Employee shall be entitled to a Company vehicle for
Employee's use while employed by the Company, with fuel and maintenance
to be paid by the Company.
5. Benefits. As long as Employee continues to be employed by the Company,
Employee shall be entitled to participate in the benefits afforded to
salaried employees of the Company (including, but not limited to,
medical and life insurance plans), to the extent Employee is otherwise
eligible under the terms and conditions of the applicable plan or
policy, and as such benefit plans or policies may from time to time be
amended, modified or terminated without prior notice. This Agreement
shall not be construed to limit in any respect the Company's right to
establish, amend, modify or terminate any benefit plan or policy.
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6. Assignment. Employee's rights and duties under this Agreement are not
assignable or transferable.
7. Termination:
a. In the event Employee is removed from employment for cause
during the term of this Agreement, Employee shall be entitled
to severance pay equal to thirty (30) days pay beyond the date
of termination, and agrees that such compensation is complete
and adequate consideration for all purposes of this Agreement,
specifically, including paragraphs 8, 9 and 10. For purposes
of this Agreement, "for cause" shall be defined as personal
dishonesty, willful misconduct, breach of fiduciary duty
involving personal profit, failure or inability to perform
stated duties, willful violation of any law, rule or
regulation (other than traffic violations or similar offenses)
or a material breach of this Agreement not remedied by
Employee within ten (10) days following written notice of such
breach from Company, death of the Employee, or a physical or
mental disability which renders the Employee unable to fully
perform his duties for a period of two (2) months.
b. In the event Employee is removed from employment without cause
during the term of this Agreement, Employee shall be entitled
to compensation equal to twelve (12) months pay beyond the
date of termination.
c. In the event Employee should resign from employment during the
term of this Agreement, Employee will not be entitled to any
additional compensation following the date of Employee's
resignation.
8. Nondisclosure Covenant. In the performance of his duties under this
Agreement, Company shall furnish Employee with Confidential Information
to which Employee has not previously had access. Employee acknowledges
the Confidential Information obtained or developed in the course of
employment with the Company remains the property of the Company.
Employee acknowledges that the Company has invested substantial sums in
the development of the Company's Confidential Information.
As used herein, the term "Confidential Information" shall mean any
written or unwritten information which specifically relates to and/or
is used in the business of the Company (including without limitation
the services, processes, designs, plans, methods of operation,
developments, financial information, market information or plans in
development, trade secrets, know-how, and the customers, suppliers and
others with whom the Company does or has in the past done business,
regardless of when and by whom such information was developed or
acquired) which the Company deems confidential and proprietary, which
is generally not known to the public, and which gives or tends to give
the Company a generally competitive advantage over persons who do not
possess such information or the secrecy of which is otherwise of value
to the Company in the conduct of the business; provided, however, that
"Confidential Information" shall not include general industry
information or information which is publicly available or information
which Employee has lawfully acquired from a source other than Company's
business. Employee acknowledges that the Confidential Information is
novel, proprietary to, and of considerable value to the Company.
During his employment and after the termination of the relationship,
Employee covenants and agrees that he will not, directly or indirectly,
disclose or communicate to any person or entity any Confidential
Information of the Company ("Nondisclosure Covenant"). This
Nondisclosure Covenant has no geographic or territorial restriction or
limitation and applies no matter where Employee may be located in the
future or whether he remains employed with the Company.
9. Non-Compete Covenant. In light of the Confidential Information which
Company will be disclosing to Employee and Employee's duty to preserve
the confidentiality of that Confidential Information, Employee agrees
that, during Employee's employment with the Company and/or Company's
affiliates, and for one (1) year following the end of Employment with
the Company for any reason, Employee will not, either for himself or
through any other person, firm or corporation, directly or indirectly:
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a. perform services as an employee, officer, director or
independent contractor for any Competing Enterprise (as
defined below) nor be an owner, shareholder (except for the
ownership by Employee of less than Five Percent (5% ) of the
equity securities of any publicly-traded company), agent,
partner, or serve in an executive position with any Competing
Enterprise within the United States or Canada (or both);
b. call on or otherwise communicate with any customer or prior
customer of the Company and/or Company's affiliates, including
any respective successors and assigns, for the purpose of
soliciting business for someone other than for the Company
and/or Company's affiliates in a Competing Enterprise; or
c. do anything to interfere with the normal operation of the
Company's business, including without limitation make any
effort to solicit any employees of the Company or acquire an
ownership interest in a Competing Enterprise.
For purposes of this Paragraph 9, the term "Competing Enterprise" shall
mean any person or any business organization of whatever form,
excluding the Company and/or the Company's affiliates, engaged directly
or indirectly within a 000-xxxx xxxxxx xx Xxxxxxx, Xxxxx, or any other
facility, now or then existing, of the Company and/or Company's
affiliates in any business or enterprise which involves the production
of concentrates or compounds or other processing services related to
petrochemical products as conducted by ICO and/or its affiliates,
including Wedco, Inc. and Bayshore Industrial, Inc.
For the purposes of Paragraphs 8, 9, 10 and 11, the phrase "Company
and/or Company's affiliates" shall mean ICO, Inc., Wedco, Inc.,
Bayshore Industrial, Inc. and any parent, affiliate, and any direct or
indirect subsidiary thereof, including successors and assigns.
10. Non-Poach Covenant. Employee agrees, that after cessation of employment
with Company for any reason, Employee will not, directly or indirectly,
make any effort personally or through others to recruit, hire or
solicit any employee or independent contractor of the Company to leave
the Company.
11. Breach of Nondisclosure, Non-Compete or Non-Poach Covenants. In the
event that Employee, either directly or indirectly, breaches, violates
or fails to fully perform his obligations under Paragraphs 8, 9 or 10
(hereinafter referred to in this paragraph as a "breach"), Employee
acknowledges and agrees that each such breach will cause immediate and
irreparable harm to the Company in a manner that cannot be measured nor
adequately compensated for in damages.
Employee has carefully considered the nature and extent of the
restrictions upon him and the rights and remedies conferred upon the
Company under this Agreement, and hereby acknowledges and agrees that
the same are reasonable with respect to scope, duration, and
geographical area; are designed to protect the legitimate business
interests of the Company; and do not confer benefits upon the Company
disproportionate to the detriment of Employee. Employee agrees that, in
the event any court of competent jurisdiction determines that the above
covenants are invalid or unenforceable, he will join with Company in
requesting the court to construe the applicable provision by limiting
or reducing it so as to be enforceable to the extent compatible with
applicable law.
The Company and Employee further agree that, in the event of any such
breach and in addition to any and all other remedies that it may have
at law or in equity, the Company shall be entitled to temporary,
preliminary, and permanent injunctive relief to restrain such breach by
Employee, and to recover all costs and expenses, including reasonable
attorneys' fees, of any proceedings brought to obtain such injunctive
relief. Employee agrees to waive any objection to, or defense in
respect of the Nondisclosure Covenant or the Non-Poach Covenant, as
well as in respect of the scope, duration or geographical area of the
Non-Compete Covenant as set forth in Paragraphs 8, 9 and 10 hereof,
respectively. Nothing contained in this paragraph shall restrict or
limit in any manner the Company's right to seek and obtain any form of
relief, legal or equitable, in an action brought to enforce its rights
hereunder.
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12. Waiver or Modification. It is agreed that no waiver, modification,
alteration or amendment of this Agreement or of any covenant, condition
or limitation herein contained shall be valid unless in writing and
duly executed by both parties; provided, however, that the Company may
amend or modify this Agreement by written notice to Employee, without
requiring the signature of Employee, to conform to or comply with
applicable federal, state or local law or regulation if such amendment
or modification is no less favorable in its terms to Employee than the
provision of the Agreement which is amended or modified thereby.
13. Other Agreements. Each party hereto expressly agrees that no
representation, promise or covenant, except those which are herein
stated, have induced said party to enter into this Agreement, and that
this writing is the full embodiment of that Agreement.
14. Binding. Subject to paragraph 6, this Agreement shall be binding upon
and inure to the respective parties hereto and their successors and
assigns.
15. Breach of this Agreement. In the event of material breach of this
Agreement, Employee may terminate the Agreement if Employer fails to
cure the breach within thirty (30) days of receipt of written notice of
such breach.
16. Survival of Provisions. Paragraphs 8, 9, 10, 11 and 15 shall survive
the termination of this Agreement. Moreover, paragraphs 8, 9, 10 and 11
shall survive the termination of Employee's employment by the Company,
regardless of whether such termination was for cause, not for cause or
as a result of Employee's resignation.
17. Arbitration. Any controversy or claim arising out of or relating to
this Agreement, the breach thereof, Employee's employment with the
Company or the termination thereof, shall be settled by binding
arbitration in accordance with the Commercial Arbitration Rules of the
American Arbitration Association, and, at the request of the prevailing
party, judgment may be entered by any court having jurisdiction upon
the award rendered by the arbitrator. Arbitration shall be held in
Houston, Texas.
17. Governing Law. The parties hereto agree that it is their intention and
covenant that this Agreement and the performance hereunder be construed
in accordance with and under and pursuant to the laws of the State of
Texas excluding its choice of law provisions.
18. Presumption. There shall be no presumption against Company on the basis
that it was responsible for preparing this Agreement, or any part of
it.
EXECUTED as of the day and year first stated above.
COMPANY: WEDCO, INC.
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: President - WEDCO North America
EMPLOYEE: XXXX XXXXXXXXX
/s/ Xxxx Xxxxxxxxx
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