EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into as of January 22, 1997, by and
between MERCURY WASTE SOLUTIONS, INC., a corporation duly organized and existing
under the laws of the State of Minnesota, with a place of business at 000 Xxxxx
Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxx 00000, hereinafter referred to as "MWS,"
and XXXXXXX X. XXXXXXX, with an address at 000 Xxxxx Xxxxxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxxx 00000, hereinafter referred to as "EXECUTIVE".
RECITALS
A. The following recitals shall be considered a part of this Agreement,
and explain the general nature and purposes of MWS's business and EXECUTIVE's
rights and obligations under this Agreement. Any interpretation or construction
of this Agreement shall be considered in light of these recitals.
B. MWS is a Minnesota corporation engaged in the business of (i)
recycling high intensity lamps which is conducted in Roseville, Minnesota, (ii)
recycling high intensity lamps and distilling/retorting mercury at a facility in
Union Grove, Wisconsin, and (iii) the sale and distribution of lamp processing
equipment (collectively, the "Business").
C. MWS desires to employ EXECUTIVE and EXECUTIVE desires to be employed
by MWS, on the terms, covenants, and conditions set forth in this Agreement.
D. In connection with the foregoing aspects of the Business, MWS
anticipates developing, from time to time, confidential business data and trade
secrets which it desires to protect from disclosure to competitors. "Trade
secret" means any information, formulae, patterns, computations, programs,
devices, methods, techniques, or processes relating to MWS' products and/or
services or its research, development, manufacture, design, marketing,
merchandising, selling and servicing.
E. The parties acknowledge that MWS' trade secrets and confidential
business data, have value to MWS only to the extent that they are not disclosed
to MWS' competitors.
F. For the purposes of this Agreement, a "competitor" shall mean any
firm, person, partnership, corporation, or any other entity, whether legal or
natural, engaged in the same or similar business as MWS as defined above,
whether that particular business comprises a part of or all of the competitor's
business.
NOW, THEREFORE, for the reasons set forth above, and in consideration
of the mutual promises and agreements set forth in this Agreement, MWS and
EXECUTIVE agree as follows:
ARTICLE 1
EMPLOYMENT
1.1 MWS hereby employs, engages, and hires EXECUTIVE as Chief Executive
Officer and EXECUTIVE hereby accepts and agrees to such hiring, engagement, and
employment, subject to the general supervision and pursuant to the advice of
MWS's Board of Directors.
1.2 EXECUTIVE shall perform such duties as may be assigned to him from
time to time by MWS's Board of Directors.
ARTICLE 2
EFFORTS OF EMPLOYEE
2.1 EXECUTIVE agrees to devote his time and skills to the conduct of
MWS's business operations, performing the duties of the Chief Executive Officer,
and such other duties as may be requested by the Board of Directors of MWS.
EXECUTIVE will comply with MWS's policies and personnel regulations as the same
may be adopted by MWS from time to time. EXECUTIVE shall perform his duties and
manage and operate the Business at all times in strict accordance with all
applicable federal and state laws and regulations, local ordinances, and any
compliance agreement or other agreement/authorization between MWS and the
Minnesota Pollution Control Agency ("MPCA"), the Wisconsin Department of Natural
Resources ("WDNR"), or any other applicable state agency for the conduct of the
Business.
ARTICLE 3
TERM OF EMPLOYMENT AND AGREEMENT
3.1 Subject to the provisions for termination hereinafter set forth,
the term of this Agreement and the performance of EXECUTIVE's services shall
commence as of January 1, 1997 (the "Effective Date") and shall continue
thereafter until December 31, 1997, unless earlier terminated as provided in
Article 6 hereof. The Agreement shall automatically renew for consecutive one
(1) year terms unless otherwise terminated as provided herein.
3.2 This Agreement shall be binding upon EXECUTIVE and MWS as of the
Effective Date.
ARTICLE 4
COMPENSATION AND BENEFITS
4.1 EXECUTIVE will be paid a base salary of Sixty Thousand and no/100
Dollars ($60,000.00) per year for each year of the term of this contract.
EXECUTIVE's compensation shall be payable in equal biweekly installments. MWS's
Board of Directors shall review EXECUTIVE's base salary compensation annually,
and may, within its sole discretion, raise EXECUTIVE's base salary based upon
EXECUTIVE's performance, MWS's performance or any other criteria it determines
is appropriate.
4.2 EXECUTIVE shall receive a bonus for fiscal 1997 as set forth in
Section 5.
4.3 MWS shall, to the extent permitted by law and the terms of the
applicable plans, provide EXECUTIVE with full participation in MWS's employee
benefit plans under the same terms as provided to other executive employees of
MWS from time to time in the exclusive discretion of MWS's Board of Directors.
Such benefits may include, but are not limited to, a medical and dental plan,
disability plan, life insurance plan, 401(k) plan and a profit sharing plan. MWS
is not obligated to provide or continue any of these benefits and may, without
any prior notice, discontinue any benefit already provided or as may be provided
in the future, within the exclusive discretion of MWS's Board of Directors.
4.4 EXECUTIVE shall be reimbursed for authorized traveling and other
out-of-pocket business expenses, provided they have been reasonably incurred in
the performance of EXECUTIVE's duties for MWS, and do not exceed a gross amount
as preapproved by MWS's Board of Directors. EXECUTIVE shall submit to MWS an
itemized account detailing the expenses on a form provided to EXECUTIVE by MWS,
accompanied by receipts. MWS reserves the right to reject reimbursement of
expense submissions not in compliance with the terms set forth in this Section
or which are not in compliance with Internal Revenue Service statutes, rules,
regulations or other controlling or interpretive authority.
4.5 EXECUTIVE is entitled to six (6) weeks of vacation per year upon
the same terms and conditions as provided to the other employees of MWS.
Vacation time will be scheduled taking into account the EXECUTIVE's duties and
obligations at MWS. Sick leave, holiday pay and all other leaves of absence also
will be in accordance with MWS's stated personnel policies.
ARTICLE 5
BONUS
5.1 Definitions. When the following terms are used in this Article 5
with initial capital letters, they shall have the following meanings:
5.11. Bonus Plan. The bonus plan set forth in this Article 5.
5.12. Code. The Internal Revenue Code of 1986, as it may be
amended from time to time, and any proposed, temporary or final Treasury
Regulations promulgated thereunder.
5.13. Committee. A committee of the Board of Directors of the
Company designated by such Board to administer the Bonus Plan, which shall
consist of outside directors appointed from time- to-time by the Board of
Directors.
5.14. Pre-Tax Income. With respect to each Performance Period,
the Company's income, prior to tax and prior to any reduction for amounts paid
pursuant hereto, but after taking into account all other expenses of the
Company, as computed in accordance with generally accepted accounting principles
as in effect for the Company's fiscal year ending December 31, 1996. For
purposes of the foregoing computation, extraordinary items, whether gains or
losses, shall also not be taken into account; provided, however, for purposes of
the foregoing computation, discontinued operations, restructuring costs and all
acquisitions and dispositions, as computed in accordance with generally accepted
accounting principles as in effect for the Company's fiscal year ending December
31, 1996 shall not be considered as extraordinary items.
5.15. Performance Bonus. The right to receive a cash payment
pursuant to Section 5.3 of the Bonus Plan.
5.16. Performance Period. The period which coincides with the
Company's fiscal year.
5.17. Performance Threshold. The Company's Pre-Tax Income in
excess of $500,000.
5.2. Administration.
5.21. Committee. The Bonus Plan shall be administered by the
Committee.
5.22. Computation. Following the close of the Performance
Period and prior to payment of any bonus under the Bonus Plan, the Committee
shall determine whether the Performance Threshold has been attained and shall
cause the amount of the Performance Bonus to be computed.
5.3 Performance Bonus. Subject to the terms and conditions of the Bonus
Plan, the EXECUTIVE shall receive a cash performance bonus for the Performance
Period in an amount equal to four percent (4%) of the difference (but not less
than zero) between (i) the Company's Pre-Tax Income for the Performance Period,
and (ii) and the Performance Threshold; provided that the cash bonus shall not
exceed $175,000.
5.4. Benefit Payments.
5.41. Time and Form of Payments. Subject to any deferred
compensation election pursuant to any such plans of the Company applicable
hereto, benefits shall be paid to the EXECUTIVE in a single lump sum cash
payment as soon as administratively feasible after the Committee has caused the
computations to be performed under Section 5.2 hereof.
5.42. Tax Withholding. In order to comply with all applicable
federal or state income tax laws or regulations, the Company may take such
action as it deems appropriate to ensure that all applicable federal or state
payroll, withholding, income or other taxes, which are the sole and absolute
responsibility of the EXECUTIVE, are withheld or collected from the EXECUTIVE.
5.5 Miscellaneous.
5.51. No Limit on Other Compensation Arrangements. Nothing
contained in the Bonus Plan shall prevent the Company from adopting or
continuing in effect other or additional compensation arrangements, and such
arrangements may be either generally applicable or applicable only in specific
cases.
5.52. Qualified Performance-Based Compensation. All of the
terms and conditions of the Bonus Plan shall be interpreted in such a fashion as
to qualify all compensation paid hereunder as "qualified performance-based
compensation" within the meaning of Section 162(m) of the Code.
ARTICLE 6
TERMINATION
6.1 MWS may terminate EXECUTIVE's employment with MWS as follows:
(i) Upon at least ninety (90) days' written notice to
EXECUTIVE, with or without cause, after the end of
the first year term of this Agreement.
(ii) Upon the disability of EXECUTIVE for a period of at
least ninety (90) business days, whether or not
consecutive, during any twelve (12) month period. For
the purposes of this Agreement, the term "disability"
means any physical or mental impairment of EXECUTIVE,
whether total or partial, which prevents EXECUTIVE,
in the reasonable judgment of MWS's Board of
Directors, from carrying out or performing the major
duties of his employment. Upon the request of MWS's
Board of Directors, EXECUTIVE shall submit to
examinations by a physician or physicians, to assist
MWS's Board of Directors in determining whether
EXECUTIVE has been disabled for purposes of this
Agreement. The decision as to EXECUTIVE's disability,
if made in good faith by MWS's Board of Directors,
shall be conclusive and binding upon EXECUTIVE.
6.2 EXECUTIVE may terminate employment with MWS upon at least ninety
(90) days' prior written notice to MWS after the end of the first year term of
this Agreement.
6.3 Any other provision of this Agreement notwithstanding, MWS may
terminate EXECUTIVE's employment without notice if the termination is based on a
violation of this Agreement, or on fraud, embezzlement, securities law
violation, material violation or willful criminal violation of environmental
laws and regulations or an applicable agreement with a federal or state
environmental agency (including without limitation any Compliance Agreement or
other agreement/authorization with the MPCA or WDNR), sexual harassment of
fellow employees, or if EXECUTIVE takes employment in competition with MWS, or
if EXECUTIVE is guilty of a substantial, willful and material act or acts of
insubordination, misconduct, dishonesty, or disloyalty against MWS, or gross
misconduct involving moral turpitude.
6.4 Employment will be deemed terminated upon the death of the
EXECUTIVE.
ARTICLE 7
PROTECTION OF TRADE SECRETS AND
CONFIDENTIAL BUSINESS DATA
7.1 In the performance of his duties, EXECUTIVE may become aware of,
either directly or indirectly, information of the following types regarding or
belonging to MWS which constitutes trade secrets or confidential business data:
(a) Patterns, programs, devices, methods, techniques or
processes.
(b) Products or components.
(c) Merchandising aids, marketing or strategic planning
information.
(d) Pricing or price structure, customers, potential
customers.
(e) Research and development.
7.2 The foregoing list of trade secrets and confidential business data
is not intended to be exclusive. From time to time during the term of his
employment, EXECUTIVE may gain and has gained access to other information
concerning MWS's business of commercial value to MWS, which information shall be
included in the definitions under Section 7.1, above, even though not
specifically listed. MWS believes that such information constitutes trade secret
information because MWS derives economic value from the fact that such
information is not generally known or readily ascertainable by proper means by
MWS's competitors or potential competitors who may obtain economic value by its
disclosure or use. The provisions of this Article 7 apply to any form in which
the subject information, secrets or data may appear, whether written, oral or
any other form of recording or storage.
7.3 EXECUTIVE covenants and agrees that both during and after his
employment with MWS, the foregoing confidential business data and information
and trade secrets will not be communicated or disclosed by him (directly or
indirectly) to any person or entity, including but not limited to, the press,
other professionals, corporations, partnerships or the public. EXECUTIVE further
agrees to never use such information for EXECUTIVE's benefit or the benefit of
any other person, firm, corporation or entity, directly or indirectly. EXECUTIVE
agrees to take reasonable security measures to prevent accidental disclosure and
industrial espionage. EXECUTIVE further covenants and agrees that he will
faithfully abide by all rules and regulations established by MWS for insuring
the confidentiality of the foregoing information and data, including, but not
limited to, rules and regulations:
(a) Limiting access to authorized personnel;
(b) Limiting copying of any writing or recording;
(c) Requiring storage of documents in secure facilities
provided by MWS and limiting safe or vault lock
combinations or keys to authorized personnel; and
(d) Checkout and return or other procedures or
regulations promulgated by MWS from time to time.
The obligations of this Section 7.3 shall survive EXECUTIVE's employment with
MWS and continue until the information at issue is no longer confidential and
becomes generally publicly known, other than as a direct or indirect result of
the breach of this Agreement by EXECUTIVE or a breach of a confidentiality
obligation owed to MWS by any other person or entity.
7.4 Upon termination of his employment with MWS, whether voluntary or
involuntary, EXECUTIVE will return to MWS any and all written or other recorded
form of the foregoing information and data, and will take with him, upon leaving
MWS' place of business, no documents, writings, recordings or reproduction in
any form which may have been entrusted to him during the course of his
employment or to which he had access or possession.
ARTICLE 8
INVENTIONS OR DISCOVERIES
8.1 EXECUTIVE acknowledges that inventions or other discoveries may be
developed, conceived or otherwise made by EXECUTIVE during employment with MWS.
EXECUTIVE agrees that all such inventions or other discoveries shall be the
exclusive property of MWS. With respect to all such inventions or other
discoveries, EXECUTIVE agrees to:
(a) Keep accurate, complete and timely records, which shall be
MWS's property and be retained on MWS's premises; and
(b) Promptly and fully disclose and describe all such
inventions or other discoveries to MWS; and
(c) Assign (and EXECUTIVE does hereby assign) to MWS all of
EXECUTIVE's rights to these inventions or other discoveries,
and to application for letters patent or copyrights in all
countries and to letters patent or copyrights granted upon
these inventions or other discoveries in all countries; and
(d) To do such other acts as may be necessary in the opinion
of MWS to preserve property rights to these inventions or
other discoveries against forfeiture, abandonment or loss and
to obtain and maintain letters patent or copyrights and to
vest the entire right and title thereto exclusively in MWS.
8.2 The obligations of this Article 8 shall continue beyond the
termination of EXECUTIVE's employment with MWS with respect to inventions or
other discoveries conceived or otherwise developed during EXECUTIVE's employment
and shall be binding upon assigns, executors, administrators and other legal
representatives.
8.3 MWS hereby notifies EXECUTIVE, and EXECUTIVE understands and
agrees, that the foregoing terms of this Article 8 do not apply to any invention
or other discovery for which no equipment, supplies, facility, or trade secret
information of MWS was used and that were developed entirely on EXECUTIVE's own
time, and (a) that does not relate (1) directly to MWS's business or (2) to
MWS's actual or demonstrably anticipated business research or development, or
(b) that does not result from any work performed by EXECUTIVE for MWS.
ARTICLE 9
COVENANT NOT TO COMPETE
9.1 In view of the compensation and benefits set forth herein, as well
as EXECUTIVE's equity participation in MWS, EXECUTIVE agrees that at no time
during the term of this Agreement and EXECUTIVE's employment with MWS and for a
period of one (1) year following the termination of EXECUTIVE's employment
(whether voluntary or involuntary) (the "Noncompete Period"), will EXECUTIVE,
directly or indirectly, without the prior written consent of the MWS Board of
Directors, (a) solicit or do competitive business with any person or entity that
is or was a customer or vendor of MWS within the twelve (12) months prior to the
date of termination, or (b) engage within the United States or Canada in any
similar or related business in competition with MWS or have any direct or
indirect interest, whether as a proprietor, partner, employee, shareholder,
principal, agent, consultant, director, officer or in any other capacity or
manner whatsoever, in any enterprise that shall so engage. EXECUTIVE recognizes
and agrees that the geographic scope of this restriction is reasonable because
MWS's business will be conducted on a national and international scale and is
not limited to a particular geographic area within the United States or Canada.
9.2 EXECUTIVE shall not, during the Noncompete Period, directly or
indirectly, hire for employment or solicit, induce or otherwise attempt to cause
any individual who is an employee of MWS during the term of his or her
employment to leave the employ of MWS for any reason whatsoever; provided,
however, that this provision shall not apply to any such employee whose
employment or relationship with MWS has been terminated for at least six (6)
months prior to such hiring or other restricted activity. The term "employment"
for purposes of this paragraph means an arrangement for services as a full-time
or part-time employee, independent contractor, agent or otherwise.
ARTICLE 10
INJUNCTIVE RELIEF
10.1 The parties acknowledge that MWS will suffer irreparable harm if
EXECUTIVE breaches this Agreement, either during or after its term. Accordingly,
MWS shall be entitled, in addition to any other rights and remedy it may have,
at law or equity, to any injunction, without the posting of a bond or other
security, enjoining or restraining EXECUTIVE from any violation of this
Agreement, and EXECUTIVE hereby consents to MWS's right to the issuance of such
injunction. In any proceeding by MWS to enforce any provision of this Agreement,
MWS shall, in addition to any injunctive relief to which it may be entitled, be
awarded damages to be determined by a court of competent jurisdiction as well as
all court costs, disbursements, expenses and attorneys' fees incurred by MWS.
10.2 In the event EXECUTIVE violates the terms of Article 9, the
Noncompete Period shall be extended for one (1) year from and after the later
of:
(a) The date which EXECUTIVE ceases any violation; or
(b) The date on which a court issues an order or judgment
enforcing the terms of the covenant.
10.3 In the event a court of competent jurisdiction determines that a
provision of Section 9.1 above is unreasonable, it may limit such provision to
the extent it deems reasonable, without declaring the provision invalid in its
entirety. This provision shall not be construed as an admission by MWS, but is
only included to provide MWS with the maximum possible protection consistent
with the right of EXECUTIVE to earn a livelihood subsequent to the termination
of his employment.
ARTICLE 11
MISCELLANEOUS
11.1 Governing Law. This Agreement shall be governed according to the
laws of the State of Minnesota.
11.2 Successors. This Agreement is personal to EXECUTIVE and EXECUTIVE
may not assign or transfer any part of his rights or duties hereunder, or any
compensation due to him hereunder, to any other person or entity. This Agreement
may be assigned by MWS.
11.3 Waiver. The waiver by MWS of the breach or nonperformance of any
provision of this Agreement by EXECUTIVE will not operate or be construed as a
waiver of any future breach or nonperformance under any such provision of this
Agreement or any similar agreement with any other employee.
11.4 Modification. This Agreement supersedes and replaces any and all
prior and written understandings, if any, between the parties relating to the
subject matter of this Agreement, including any previous employment contract
which is hereby revoked. The parties agree that this Agreement is the entire
understanding and agreement between the parties.
IN WITNESS WHEREOF the following parties have executed the above
Employment Agreement as of the day and year first above written.
MERCURY WASTE SOLUTIONS, INC.
a Minnesota corporation
By ______________________________________
Its __________________________________
_________________________________________
Xxxxxxx X. Xxxxxxx
