EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into as of
the 1ST day of AUGUST, 1995 (the "Effective Date), by and between Abatix
Environmental Corp., a DELAWARE corporation (the "Company"), and XXXXX
XXXXXXX (the "Employee").
W I T N E S S E T H:
WHEREAS, the Company is a for-profit corporation incorporated under the laws
of the State of Delaware and is engaged in certain sales activities and other
related endeavors ancillary to such activities (hereinafter referred to as
the "Business");
WHEREAS, Employee is possessed of particular skills, knowledge and abilities
useful to the Business of the Company; and
WHEREAS, the Company desires to employ the Employee, and the Employee desires
to be employed by Company to aid and assist the Company in carrying out the
Business of the Company, pursuant to the terms and conditions contained
herein.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
ARTICLE I
EMPLOYMENT
SECTION 1.01. EMPLOYMENT AND TITLE. (a) Company hereby agrees to employ
Employee, and Employee hereby accepts employment as salesperson, upon the
terms and conditions hereinafter set forth, each Party expressly revoking any
and all prior employment agreements to which the Parties may be mutually
subject. As salesperson, Employee shall serve Company and its affiliates on
a full-time basis subject to the supervision and control of the Management
(hereinafter referred to as the "Management"). Employee hereby agrees to
serve the Company in such capacity for the period commencing on the Effective
Date and ending on July 31, 1999 unless this Agreement is terminated prior to
such date pursuant to the terms of Section 3 hereof (hereinafter referred to
as the "Employment Term").
(b) During the term of this Agreement, the Company will employ Employee and
Employee will render services to the Company in such capacities and with
respect to such matters as the Management of the Company may determine,
including providing expertise and advice pertaining to sales activities of
the Company.
(c) Unless otherwise authorized by the Company's Management, the Employee
shall [NOT] have the right to make any contracts or commitments for or on
behalf of the Company, to sign or endorse any commercial paper, contracts, or
instruments of any nature, and to enter into any obligation binding the
Company to the payment of money or otherwise.
(d) Employee agrees to serve the Company faithfully and to the best of his
abilities in the capacity referenced above and in any other work or activity
in furtherance of the business of the Company in which his talents may be
applied in a manner commensurate with his position, training, knowledge,
skills and abilities, and to perform any and all duties described by the
Management or any other appropriate officer of the Company, during the course
of his employment. Except as otherwise may be approved by the Management of
the Company, Employee further agrees to devote all of his business time,
attention, abilities and energy exclusively to the business of the Company
throughout the Employment Term, except for vacation periods and periods of
sick leave in accordance with the Company's policies as may be adopted or
amended by the Management from time to time.
(e) The Employee further agrees to abide by the Company's Articles of
Incorporation, Bylaws, rules and regulations as may be in effect, amended
and/or established from time to time by the Management and/or authorized
officers after the Employee has been provided with such document.
(f) Employee shall keep the President and other Management of the Company
informed, as the President may request or direct, as to all activities in
which Employee proposes to be or is engaged on behalf of the Company.
SECTION 1.02. GENERAL OBLIGATIONS AND DUTIES. During the term of this
Agreement:
(a) In carrying out this Agreement and the lawful business affairs of the
Company, Employee shall also accept such other duties and assignments as the
Management of the Company may from time to time determine provided it
pertains to outside sales.
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ARTICLE II
COMPENSATION, COMMISSION AND BENEFITS
SECTION 2.01 COMPENSATION. As full compensation for all services rendered
pursuant to this Agreement, the Employee shall be entitled to receive from
the Company an aggregate base salary (hereinafter referred to as the "Base
Salary") at the rate of Ten Thousand and No/100 Dollars ($10,000.00) per
month through the 48th month of this Agreement.
(a) If no additional employment agreement has been entered into and Employee
continues to work for the Company after the 48th month, then each year
thereafter, the Company further agrees to continue the Base Salary of Ten
Thousand and No/100 Dollars ($10,000.00) per month contingent upon the
Employee's continued achievement of a minimum of $480,000.00 in Gross Profits
(as defined in Section 2.02 (d)) for the previous twelve month period.
(b) The monthly Base Salary to be paid to the Employee hereunder shall be
paid in two (2) equal installments each month, less applicable withholding,
FICA, other taxes and authorized deductions, if any. Such installments shall
be paid on the first (1st) and fifteenth (15th) day of each calendar month,
beginning with the execution of this Agreement. All salary payments are
subject to appropriate withholding for federal, state, local and FICA taxes.
(c) In the event that the employee attains $300,000.00 in Gross Profit in
the fiscal year, then an additional 2% commission per year is to be paid;
and in the event that the Employee attains an additional $100,000.00 in
Gross Profit, then an additional 2% commission is to be paid and when each
additional increment of $100,000.00 Gross Profit is achieved.
(d) In the event that the Employee attains Gross Profit of $400,001.00 in
the fiscal year, then a bonus of $20,000 will be paid.
(e) In the event that the Employee attains a Gross Profit of $500,001.00 in
the fiscal year, then a bonus of $15,000.00 will be paid.
(f) In the event that the Employee attains a Gross Profit of $550,001.00 in
the fiscal year, then a bonus of $10,000.00 will be paid.
(g) In the event that the employee attains a Gross Profit of $700,001.00 in
the fiscal year, then a Bonus of $5,000.00 will be paid.
(h) In the event that the employee attains a Gross Profit of $800,001.00 in
the fiscal year, then a Bonus of $5,000.00 will be paid.
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(i) In the event that the employee attains a Gross Profit of $900,001.00 in
the fiscal year, then a Bonus of $5,000.00 will be paid.
(j) In the event that the employee attains a Gross Profit of $1,000,001.00
in the fiscal year, then a Bonus of $10,000.00 will be paid.
(k) A car phone allowance of $175.00 per month payable on the 1st of each
month.
(l) A digital pager will be provided and payable by the Company.
SECTION 2.02. COMMISSIONS. (a) Employee shall be entitled to receive
commissions (the "Commissions") at the rate of twenty-five (25%) percent
under this Agreement for monthly Gross Profit on sales to accounts assigned
to the Employee during the term of this Agreement.
(b) The Commission shall accrue hereunder with respect to gross profit on
monthly sales to customers (as defined in Section 4.01 (ii)) assigned to the
Employee, the prior acceptance of a credit application of a Customer and
within the limits of the credit terms set by the Company. The Commission
shall be due and payable less the $10,000.00. Base Salary paid the previous
month on the last business day of each calendar month for sales by the
Employee and accepted by the Company during the prior calendar month during
the Term hereof. If commissions during any month do not exceed Base Salary,
Employee will have no obligation to refund the difference.
(c) For purposes of this Section 2.02, "Net Sales" shall mean the gross
amount actually charged by the Company net of freight and taxes in connection
with sales to accounts assigned to the Employee during the Term hereof and
for which a purchase order has been accepted by the Company, net of any
adjustments, restocking charges, and gross amounts refunded or returned to
the Customer on sales by the Employee within the current or any previous
fiscal year.
(d) For purposes of this Section 2.02, "Gross Profit" shall mean Net Sales
less the cost of goods sold as determined by the first in first out method
and any applicable freight and taxes.
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SECTION 2.03. REIMBURSEMENT FOR EXPENSES. As permitted by Company's
President or Management from time to time, Employee shall be authorized to
incur reasonable business expenses in connection with performing his duties
hereunder and promoting the business of the Company. The Company shall
reimburse Employee for all of his reasonable business expenses (including
reasonable expenditures for travel, meals and hotel accommodations) incurred
in the course of his employment by the Company pursuant to this Agreement up
to an amount not to exceed Seven Hundred Fifty and no/100 dollars ($750.00)
per month. Expenses are non cumulative in respect to the monthly limit.
All reimbursements shall be in accordance with the Company's established
expense reimbursement policies and shall be expressly conditioned upon the
Company's receipt of all required information or documentation as generally
determined by the Company, including, without limitation, all information or
documentation necessary or appropriate for deduction of the payments by the
Company on its federal and/or state income tax returns (even if the payments
are not fully deductible by the Company) and all appropriate information
relating to (i) the amount of the expenditure, (ii) the time, place and
designation of the type of entertainment, travel or other expense, (iii) the
business or other reason for the expenditure, and (iv) the names, occupations
and addresses of each person entertained.
SECTION 2.04. OTHER BENEFITS. Employee shall be entitled to participate in
medical and health, 401-K, Profit-Sharing plans, and other benefits generally
made available to employees of the Company, as from time to time determined
by the Company's President or Management. In this regard, Employee shall be
responsible for any costs generally charged to such employees for
participation therein, however, the Company will be responsible for the
premiums for the employee and family coverage in the medical and health plan.
SECTION 2.05. VACATION. Employee shall be entitled to take two (2) weeks'
vacation with pay each year. Vacation time shall be taken with due
consideration to the services required of Employee and the requirements of
the Company.
SECTION 2.06. AUTO ALLOWANCE. Employee shall receive a car allowance of
$750.00 per month payable on the 1st day of each month.
SECTION 2.07 DEFINITION OF YEAR. Whenever the term "year" or "per year" is
used in this Section, it shall mean 12 full calendar months (plus any partial
month in the first year) from the Effective Date of this Agreement and each
12 month period thereafter.
SECTION 2.08 STOCK OPTIONS. 10,000 stock options will be granted the first
year of the Agreement, if the Employee achieves Gross Profit of at least
$500,001.00. Option price to be determined by the bid price of the Company's
stock, as established by NASDAQ on the day after the date that the Employee
achieves $500,001.00 Gross Profit goal. Employee shall have one (1) year
after achieving the stock option to exercise such option.
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ARTICLE III
TERM AND TERMINATION
SECTION 3.01. TERM. If the Employment Term is extended beyond the initial
Term pursuant to this Agreement, it is expressly understood and agreed that
Employee shall then be employed at the will of the Company and the employment
continued hereby may be terminated at any time with cause (as hereinafter
defined).
SECTION 3.02. EARLY TERMINATION. The employment of the Employee may be
terminated in the following manner:
(a) The Company may terminate Employee's employment hereunder upon the
occurrence of any of the following events, which termination shall be deemed
a termination without "Cause" or for reasons other than "Cause":
(i) Employee's employment hereunder shall be automatically terminated upon
the death of Employee.
(ii) Employee's employment hereunder shall automatically terminate within 90
days, upon a determination by Company's President or Management that Employee
is subject to a "Permanent Disability". For purposes of this Agreement, the
term "Permanently Disabled" or "Permanent Disability" shall mean a disability
by reason of the occurrence of an injury or disease (including a mental
illness or illness caused by substance abuse) or a physical or mental
condition which, in the opinion of the Company's President, [(i)] results in
Employee becoming unable adequately to perform his customary duties for the
Company, and (ii) has existed for a continuous period of at least twelve (12)
consecutive weeks, of which time such person has been unable to average in
excess of thirty-five (35) hours per week of the type of work for which such
person is employed by the Company. In determining whether Employee is
Permanently Disabled, the Company may rely upon the opinion of any doctor
licensed to practice medicine who has been selected by the Company, and any
other evidence the Company deems appropriate. The Company shall be the sole
judge as to whether Employee is Permanently Disabled as defined herein, and
its judgment shall be binding and conclusive.
(iii) The Employee's employment hereunder shall automatically terminate upon
the (1) liquidation and/or dissolution of the Company (other than after a
defined "Change of Control"), (2) or discontinuance of substantially all
active operations of the Business. The termination of the Employee's
employment pursuant to this subparagraph (iii) shall be effective on the date
that the event described above occurs unless a later date is determined by
the Management.
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(b) Employee's employment hereunder shall automatically terminate upon a
determination by the Company's President that any of the following events
have occurred, which termination shall be deemed to be a termination for
"Cause":
(i) Employee has materially failed or refused to faithfully, diligently and
satisfactorily perform the usual and customary duties of his employment or
adhere to the provisions of this Agreement.
(ii) Employee has failed or refused to comply with the reasonable policies,
standards, regulations, instructions or directions of the Company which, from
time to time, may be established and/or amended by the Management and/or
authorized officers of the Company.
(iii) Employee has conducted himself in an unprofessional, unethical, immoral
or fraudulent manner, or engages in any activity which is grossly detrimental
to the reputation, character and standing of the Company.
(iv) The Employee has conducted himself in a manner which constitutes neglect
of his duties, willful misconduct, fraud upon the Company, dishonesty,
misappropriation of Company assets or similar criminal conduct.
(v) Employee has materially breached any duty or obligation required by this
Agreement.
(vi) Employee has resigned for any reason other than as a result of a breach
of this Agreement by the Company.
(c) In the event Employee's employment and this Agreement are terminated
pursuant to this Section 3.02, the Company shall have no obligation to pay
any compensation or benefits other than those which accrued prior to the date
of termination.
SECTION 3.03. INVOLUNTARY TERMINATION AFTER "CHANGE OF CONTROL." In the
event of a "Change of Control" as defined below, the Company shall have the
right to terminate Employee's employment and this Agreement, however, the
Company will be required to pay Employee upon termination, (i) $200,000 if
termination occurs in months 1-12, of employment, (ii) $200,000 if
termination occurs in months 13-24, and (iii) the remaining Base Salary if
termination occurs in any month thereafter.
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For purposes of this Section 3.03 of this Agreement, a "Change of Control"
shall be deemed to have taken place if: (i) a third person, including a
"group" as determined in accordance with Section 13(d)(3) of the Securities
Exchange Act of 1934, becomes the beneficial owner of shares of the Company
having forty-five percent (45%) or more of the total number of votes that may
be cast for the election of directors of the Company; or (ii) as a result of,
or in connection with, any cash tender or exchange offer, merger or other
business combination, sale of assets or contested election, or any
combination of the foregoing transactions (a "Transaction"), the persons who
were directors of the Company before the Transaction shall cease to
constitute a majority of the Management of the Company or any successor to
the Company.
SECTION 3.04. EMPLOYEE'S RESIGNATION. In the event Employee terminates this
Agreement other than by reason of his death or disability as defined in this
Article III, Employer shall have no further obligations under this Agreement,
other than for payment of all unpaid salary, if any, accrued but unpaid
through the date of such termination.
ARTICLE IV
COVENANT NOT TO COMPETE AND CONFIDENTIAL INFORMATION
SECTION 4.01. NON-COMPETITION. (a) In consideration of his employment
hereunder and in recognition that the relationship between himself and the
Company is one of trust, the Employee covenants and agrees that the Employee
will not, directly or indirectly, for his or her own account or benefit, or
for the account or benefit of any other person or party:
(i) Own, manage, engage in, control, be employed by, participate in or be
connected with, in any manner whatsoever, the ownership, management,
operation or control of any business which sells, promotes or distributes
products or services, or which otherwise performs services, which are
reasonably like and which may reasonably compete with those products or
services offered by the Company or any affiliate or future subsidiary of the
Company at any time during the term of this Agreement or as of the date of
termination of the Employee;
(ii) Canvas, solicit or accept business from "Customers of the Company"
(except on behalf of the Company) which, for purposes of this Agreement,
shall mean any person or entity which has been contacted by the Employee in
the course of his employment with the Company or its affiliates or future
subsidiaries, or has engaged in business with the Company or any of its
affiliates or future subsidiaries during the two (2) year period prior to the
date of termination of the Employee's employment hereunder;
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(iii) Directly or indirectly request or advise any Customer of the Company to
withdraw, curtail or cancel such Customer's business with the Company, or
otherwise interfere with the business relationship between such Customers and
the Company, or any of its affiliates or future subsidiaries;
(iv) Directly or indirectly disclose to any person, firm or corporation any
information relating to any acquisition candidate;
(v) Otherwise aid, consult or assist anyone engaged in any business which is
competitive with the "Business of the Company", which "Business of the
Company" shall include all business activities in which the Company or any of
its affiliates or future subsidiaries is engaged at any time during the Term
of this Agreement (including, but not limited to, the operation of a
residential and commercial mechanical services business and the acquisition
of such types of business) or in which the Company or any of its affiliates
or future subsidiaries plans to engage at the date of termination of the
Employee; or
(vi) Communicate to any person or entity any trade secrets, customer lists,
information (financial or otherwise), strategies, systems, methods or any
other business data or secrets of the Company, any of the Company's
affiliates or future subsidiaries.
(b) Employee's covenants against competition as set forth in subparagraph (a)
above shall commence on the date of this Agreement and shall continue (i) for
a period of one (1) year after the date of termination of Employee's
employment hereunder for Cause (as herein defined). The restraints against
competition imposed on and agreed to by Employee hereunder shall apply to,
and be enforceable in, the area within fifty (50) miles of any location where
the Company, or any of its affiliates, subsidiaries, is doing business as of
the date of termination of Employee's employment hereunder.
SECTION 4.02. TRADE SECRETS. (a) In consideration of his employment
hereunder, and in recognition that the relationship between himself and the
Company is one of trust, the Employee covenants and agrees that the Employee
will not, directly or indirectly, for his own account or benefit, or for the
account or benefit of any other person or party, communicate to any person or
entity any trade secrets, customer lists, information (financial or
otherwise), strategies, systems, methods or any other business data or
secrets of Company, any of the Company's affiliates or future subsidiaries.
(b) Employee's covenant against disclosure as set forth in subparagraph (a)
above shall commence on the date of this Agreement and shall continue for a
period of one (1) year from the date of termination of this Agreement for
cause.
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SECTION 4.03. NONDISCLOSURE OF CONFIDENTIAL INFORMATION. (a) Employee
acknowledges that the Company may disclose certain confidential information
to Employee during the Employment Term to enable him to perform his duties
hereunder. Employee hereby covenants and agrees that he will not, without
prior written consent of the Company, during the Term of this Agreement or at
any time thereafter, disclose or permit to be disclosed to any third party by
any method whatsoever any of the confidential information of the Company.
For purposes of this Agreement, "confidential information" shall include, but
not be limited to, any and all records, notes, memoranda, data, ideas,
processes, methods, techniques, systems, programs, computer software,
writings, research, personnel information, plans, or any other information of
whatever nature in the possession or control of the Company which has not
been published or disclosed to the general public, or which gives to the
Company an opportunity to obtain an advantage over competitors who do not
know of or use it. Employee further agrees that if his employment hereunder
is terminated for any reason, he will leave with the Company and will not
take originals or copies of any and all records, papers, programs, computer
software and documents and all matter of whatever nature which bear secret or
confidential information of the Company.
(b) During the Employment Term Employee agrees that he will not directly or
indirectly for himself or for the benefit of, or in conjunction with any
other entity:
(i) call upon any individual or entity who or which was a or customer of
Employer at any time during the term of Employee's employment with Employer,
for the purpose of soliciting, selling, servicing, diverting, taking,
transferring or interfering with any of the customer's patronage of Employer;
(ii) call upon any individual or entity who or which during the two (2) year
period preceding Employee's termination of employment has been the subject of
a solicitation, in the form of a written proposal or other presentation by
Employer or Employee; or
(iii) solicit or attempt to solicit any Employee(s) of Employer in order to
cause the termination of his, her or their employment with Employer.
Subparagraph (a) herein shall not be applicable if and to the extent Employee
is required to testify in a judicial or regulatory proceeding pursuant to an
order of a judge or administrative law judge issued after Employee and his
legal counsel urge that the aforementioned confidentiality be preserved.
The covenants set forth in this Section are in consideration of employment,
or continuing employment, and the compensation paid to Employee during his
employment by the Company. The foregoing covenants will not prohibit
Employee from disclosing confidential or other information to other employees
of the Company or to third parties to the extent that such disclosure is
necessary to the performance of his duties under this Agreement.
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SECTION 4.04. REMEDY FOR BREACH. Employee expressly recognizes and
acknowledges that the terms and conditions of this Agreement and specifically
Article IV. hereunder are reasonable as to time and area, necessary to
protect the legitimate business interests of the Company, and are not unduly
burdensome to Employee.
Further, Employee expressly acknowledges and agrees that irreparable injury
will result to the Company and to its business and properties in the event of
any breach by Employee of any of the provisions of this Article IV, and that
Employee's continued employment is predicated on the commitments undertaken
by him pursuant thereto. In the event of any breach of any of Employee's
commitments pursuant to this Article IV, the Company shall be entitled to any
other remedies and damages available, to injunctive relief to restrain the
violation of such commitments by Employee or by any person or persons acting
for or with Employee in any capacity whatsoever.
SECTION 4.05. WAIVER OF BREACH. The waiver of either party of a breach of
any provision of this Agreement shall not operate or be construed as a waiver
of any subsequent breach by either Employer or Employee. The failure to
enforce any provision(s) of the Agreement shall not be construed as a waiver
of such provision(s).
SECTION 4.06. SURVIVAL OF COVENANTS. The covenants of Article IV hereof
shall survive any termination of Employee's employment and any termination of
this Agreement, and be enforceable according to their terms.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. NOTICES. All notices, demands or other communications
required or provided hereunder shall be in writing and shall be deemed to
have been given at the earlier of (i) actual receipt, or (ii) three (3) days
after deposit in the United States Mail as provided below. Notice may be
sent by personal service to the parties at the addresses set forth below, or
at such other addresses as such parties may designate by notice to the other
parties, or by deposit in the United States mail, certified or registered,
postage prepaid, return receipt requested, addressed to the parties at the
addresses set forth below or at such other addresses as such parties may
designate by notice to the other parties.
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If to the Company: Abatix Environmental Corp.
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
with a copy to: Arter, Hadden, Xxxxxxx & Xxxxxxxx
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxx X. Xxxxxxxxx
If to Employee: Xxxxx Xxxxxxx
0000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
SECTION 5.02. APPLICABLE LAW. This Agreement and the obligations of the
parties hereunder shall be interpreted, construed, governed and enforced in
accordance with the laws of the State of Texas, and shall be performed in
Dallas County, Texas.
SECTION 5.03. ENTIRE AGREEMENT. This Agreement contains the entire
agreement among the parties hereto relative to the transactions contemplated
hereby, and supersedes all other oral and written agreements, express or
implied, concerning the subject matter of this Agreement. No variations,
modifications or changes in this Agreement shall be binding upon a party
unless set forth in a document duly executed by or on behalf of such party.
SECTION 5.04. ASSIGNABILITY. The Company, its transferees, successors and
assigns reserve the right to assign this Agreement, and all of the rights and
obligations of Company hereunder, to any of their respective successors,
affiliates or future subsidiaries. Neither this Agreement, nor the rights
and obligations created under it, may be assigned by the Employee without the
prior written consent of the Company.
SECTION 5.05. INDEPENDENT COVENANTS. The provisions contained in this
Agreement are independent and separate. In the event that any provision is
declared unenforceable, the other provisions shall not be affected or
impaired but shall remain valid and enforceable.
SECTION 5.06. CONSENT AND WAIVER. No consent or waiver, express or implied,
by any party hereto of any breach or default by any other party shall be
deemed or construed to be a consent or waiver to or of any other breach or
default. Failure on the part of any party to complain of any act or failure
to act of the other party or to declare the other party in default,
irrespective of how long such failure continues, shall not constitute a
waiver by such party of its rights hereunder.
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SECTION 5.07. SEVERABILITY. If any provision of this Agreement or the
application thereof to any person or circumstance shall be held invalid or
unenforceable to any extent, such illegality or unenforceability shall extend
to that provision only, and the remainder of this Agreement shall be enforced
to the greatest extent permitted by law as if such illegal or unenforceable
provision were not incorporated herein.
SECTION 5.08. RELATIONSHIP OF THE EMPLOYEE. The relationship between the
Employee and the Company shall be limited to the performance of the duties
and responsibilities contemplated by and in accordance with the terms of this
Agreement. Nothing herein shall be construed to authorize Employee to act as
agent of the Company for any other purposes.
SECTION 5.09. SUCCESSORS. Subject to the provisions of Section [5.04]
hereof, this Agreement shall be binding upon the parties hereto, their heirs,
administrators, successors, executors and assigns, and the parties hereto
covenant and agree that they themselves and their respective heirs,
executors, successors, administrators and assigns will execute any and all
instruments, releases, assignments and consents that may be reasonably
required to more fully implement the provisions of this Agreement. Except as
otherwise provided herein, this Agreement shall inure to the benefit of and
be enforceable by and against the respective heirs, executors,
administrators, legal representatives, successors and assigns of the
Employee.
SECTION 5.10. THIRD PARTY BENEFICIARY. Nothing in this Agreement shall be
deemed to create any right in any creditor or other person not a party hereto
(other than the successors and assigns of a party hereto), and this
instrument shall not be construed in any respect to be a contract in whole or
in part for the benefit of any other party except as aforesaid.
SECTION 5.11. ADDITIONAL ACTS. In connection with this Agreement, as well
as all transactions contemplated by this Agreement, Employee agrees to
execute and deliver such additional documents or perform such additional acts
as may be necessary or appropriate to effectuate, carry out and perform all
of the terms, provisions and conditions of this Agreement.
SECTION 5.12. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall serve as an original for all purposes, but
all copies of which shall constitute but one and the same Agreement.
SECTION 5.13. HEADINGS AND CAPTIONS. The Article and Section headings and
other captions contained in this Agreement are inserted only as a matter of
convenience, do not form a part of this Agreement and in no way define,
limit, extend or describe the scope, meaning, construction or effect of this
Agreement or any provision hereof or the intent of the parties.
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SECTION 5.14. DEEMED REJECTION. Except as is expressly provided otherwise
herein, the failure of a party to respond, within the response period set
forth in the request in question (which response period shall not be less
than five (5) business days nor more than ten (10) business days from the
date on which the party in question is deemed to have received notice of such
request pursuant to Section [5.01] above), either in the affirmative or in
the negative, to any request it receives from another party or the Company
relating to a proposed act and in respect of which such party is entitled to
vote pursuant to this Agreement, shall conclusively be deemed for all
purposes to be a vote by such party against the act set forth in such request.
SECTION 5.15. ENFORCEMENT. In the event it becomes necessary for any party
hereto to file suit to enforce this Agreement or any provision contained
herein, the prevailing party in such action shall be entitled to recover, in
addition to all other remedies or damages, court costs, expenses of
litigation and reasonable attorneys fees incurred in such suit.
SECTION 5.16. BUSINESS DAYS. Whenever the terms of this Agreement call for
the performance of a specific act on a specified date, which date falls on a
Saturday, Sunday or legal holiday, the date for the performance of such act
shall be postponed to the next succeeding regular business day following such
Saturday, Sunday or legal holiday.
SECTION 5.17. LIMITATIONS OF ACTIONS. Any action or suit under this
Agreement or relating in any way to Employee's employment with the Company
must be brought within one (1) year after the alleged breach of this
Agreement, and the parties hereby waive any statute of limitations to the
contrary.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first set forth above.
COMPANY:
Abatix Environmental Corp.,
a Delaware Corporation,
By: S/S XXXXX X. XXXXXX
---------------------
Name: Xxxxx X. Xxxxxx
Title: President
EMPLOYEE:
S/S XXXXX XXXXXXX
--------------------
Name: Xxxxx Xxxxxxx
14
