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Exhibit 10.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") entered into as of the
1st day of October, 1996 by and between MED/WASTE, INC., a Delaware corporation
(the "Company"), and XXXXXXX X. XXXXX ("XXXXX").
R E C I T A L S:
A. The Company is engaged in the medical waste management
business (the "Medical Waste Business") through its wholly owned subsidiaries
Safety Disposal System, Inc. ("SDS") and Safety Disposal System of South
Carolina, Inc. and is a franchisee and franchisor of janitorial services to
commercial businesses (the "Janitorial Business") with multiple locations in
Ohio and Florida through its wholly owned subsidiary The Xxxxx Group, Inc.
("Xxxxx") (the Medical Waste Business and Janitorial Business shall hereinafter
be collectively referred to as the "Business");
X. XXXXX has served as Vice President of the Company since May
1995 and as Vice President/Chief Financial Officer since December 1995; and
C. The Company believes that it is in the best interest of the
Company to assure XXXXX of a secure minimum compensation and to diminish the
inevitable distraction of XXXXX that may result in the event of the possibility,
threat or occurrence of a Change of Control (as defined below) by providing for
certain compensation arrangements upon a Change of Control.
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained in this Agreement, the parties agree as follows:
1. RECITATIONS. The above recitations are true and correct and
are incorporated herein by this reference.
2. POSITION OF EMPLOYMENT.
2.1. EMPLOYMENT POSITION. The Company hereby continues to
employ XXXXX as Vice President/Chief Financial Officer of the Business during
the term set forth in this Agreement. XXXXX shall continue to perform such
duties as are usually performed by a vice president/chief financial officer of a
business similar in size and scope as the Company and such other reasonable
additional duties as may be prescribed from time to time by the Company's Board
of Directors which are reasonable and consistent with the Company's operations,
taking into account XXXXX'x education, expertise and job responsibilities. XXXXX
shall report directly to the President of the Company. All actions of XXXXX
shall be subject and subordinate to the review and approval of the Board of
Directors. The Board of Directors shall be the final and exclusive arbiter of
all policy decisions relative to Company's Business. In the interim between
Board or Executive Committee meetings, the Chairman of the Board shall be the
exclusive arbiter of policy matters.
2.2. DEVOTION OF TIME. During the term of this Agreement,
XXXXX agrees to devote full time and attention during normal business hours to
the business and affairs of the Company to the extent necessary to discharge the
responsibilities assigned to XXXXX and to use
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reasonable best efforts to perform faithfully and efficiently such
responsibilities. During this Agreement, it shall not be a violation of this
Agreement for XXXXX to (i) serve on corporate, civic or charitable boards or
committees; (ii) prepare income tax returns for individuals or companies other
than the Company; (iii) deliver lectures, fulfill speaking engagements or teach
at educational institutions; or (iv) manage personal investments or companies in
which personal investments are made, so long as such activities do not interfere
with the performance of XXXXX'x responsibilities with the Company and which
companies are not in competition with the Company.
2.3. CORPORATE OPPORTUNITY. It is the express
understanding by and between the parties that the doctrine of corporate
opportunity as set forth in Delaware corporate law shall only apply to XXXXX and
the Company for any business opportunities in the medical waste, solid waste or
janitorial industries or such other industry in which the Company operates
during the term of this Agreement. XXXXX shall not be required to offer to the
Company any business opportunities or ventures in any other industry.
2.4. LOCATION OF EMPLOYMENT. Unless otherwise agreed by
XXXXX, XXXXX'x principal place of employment shall be in a mutually agreeable
location and facility within Dade, Broward or Palm Beach County, Florida.
3. TERM OF EMPLOYMENT.
3.1. TERM OF EMPLOYMENT. This Agreement shall begin as of
the date hereof (the "Commencement Date") and shall end at the end of one year
thereafter, subject to automatic extension or earlier termination as otherwise
set forth in this Agreement. Notwithstanding anything herein to the contrary,
upon the effective date of a Change of Control as defined in Section 3.6 herein,
the Term of this Agreement shall automatically convert to a two (2) year term,
with the Commencement Date of the two (2) year term to be the effective date of
the Change of Control.
3.2. TERMINATION OF EMPLOYMENT BY THE COMPANY FOR
NON-PERFORMANCE. The Company may terminate XXXXX'x employment upon thirty (30)
days written notice for the following reasons: if
3.2.1. a material default or breach by XXXXX of any
of the provisions of this Agreement;
3.2.2. failure to follow reasonable and lawful
directives of the Company's Board of Directors, which are consistent with
XXXXX'x job responsibilities and performance.
XXXXX shall have the right to cure any such default under this
Section 3.2 within the thirty (30) day period or such additional time as is
reasonably necessary to cure such default if XXXXX is using diligent effort to
cure such default. The notice must set forth in reasonable detail the facts
underlying the termination. In the event that XXXXX'x employment is terminated
in accordance with the provisions of this Section 3.2, the Company shall not be
liable for any further compensation or benefits following the effective date of
termination other than accrued Base Salary.
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3.3. TERMINATION BY THE COMPANY FOR CAUSE. The Company
may terminate XXXXX'x employment effective upon written notice, if such
termination is for "Cause." For purposes of this Agreement, "Cause" is defined
as:
3.3.1. death of XXXXX;
3.3.2. actions by XXXXX constituting fraud,
embezzlement or dishonesty which result in a conviction of a criminal offense
not overturned on appeal;
3.3.3. intentionally furnishing false, misleading,
or omissive information to the Company's Board of Directors or any committee
thereof;
3.3.4. actions constituting a breach of the
confidentiality of the Business and/or trade secrets of the Company which is
materially detrimental to the Company;
3.3.5. the commission of an act by XXXXX involving
moral turpitude which detrimentally impacts on the business or reputation of the
Company;
3.3.6. intoxication by alcohol or drugs during the
performance of duties on more than one occasion which detrimentally impacts on
the business or reputation of the Company; or
3.3.7. in the event that XXXXX shall become mentally
or physically disabled (as hereinafter defined) so as to be unable to perform
his duties for a period of ninety (90) days. During such disability and prior to
termination, XXXXX shall continue to receive his Base Salary and other
compensation and benefits herein. Disability for the purposes herein shall be
the inability of XXXXX to perform his duties as determined by an independent
physician mutually chosen by the Company and XXXXX.
Upon termination for Cause, the Company shall not be liable for any further
compensation or benefits following the effective date of termination other than
accrued Base Salary.
3.4. TERMINATION WITHOUT CAUSE. The Company shall have
the right to terminate this Agreement without Cause on thirty (30) days written
notice, subject to payment by the Company of the Termination Payment described
in Section 4.5 herein; provided however, that if the Company terminates this
Agreement in accordance with this Section 3.4 following a Change of Control (as
defined in Section 3.6 herein), the Company shall pay to XXXXX the Severance
Payment described in Section 4.6 herein.
3.5. TERMINATION BY XXXXX. XXXXX may terminate this
Agreement upon thirty (30) days written notice after a material default of this
Agreement by the Company, which default is not cured within the thirty-day
notice period. Such notice shall set forth in reasonable detail the facts
underlying the default. If XXXXX terminates this Agreement under this Section
3.5 prior to a Change of Control, XXXXX shall be entitled to the Termination
Payment as provided in Section 4.5. If XXXXX terminates this Agreement under
this Section 3.5 following a Change of Control, XXXXX shall be entitled to the
Severance Payment as provided in Section 4.6.
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3.6. CHANGE OF CONTROL. Change of Control is defined for
the purposes of this Agreement as any of the following acts:
3.6.1. The acquisition by any person, entity or
"group" within the meaning of section 13(d) or 14(d) of the Securities Exchange
Act of 1934 (the "Exchange Act") of beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of twenty-five (25%) percent or
more of either the then outstanding shares of the Company's common stock or the
combined voting power of the Company's then outstanding voting securities
entitled to vote generally in the election of directors; or
3.6.2. If the individuals who serve on the Company
Board of Directors as of the Commencement Date (the "Incumbent Board") cease for
any reason to constitute at least a majority of the Board of Directors;
provided, however, that any person who becomes a director subsequent to the
Commencement Date whose election or nomination for election by the Company's
shareholders was approved by a vote of at least a majority of the directors then
compiling the Incumbent Board shall be for purposes of this Agreement considered
as if such person was a member of the Incumbent Board; or
3.6.3. Approval by the Company's stockholders of (i)
a merger, reorganization or consolidation whereby the Company's shareholders
immediately prior to such approval do not, immediately after consummation of
such reorganization, merger or consolidation own more than 50% of the combined
voting power entitled to vote generally in the election of directors of the
surviving entity's then outstanding voting securities; or (ii) liquidation or
dissolution of the Company; or (iii) the sale of all or substantially all of the
assets of the Company.
Upon the effective date of a Change of Control, this Agreement
shall automatically be extended for a period of two (2) years commencing such
date.
3.7. AUTOMATIC EXTENSION. Prior to a Change of Control,
this Agreement shall be automatically extended for successive one (1) year
periods at the end of the initial or extended terms, unless either party
provides written notice of termination to the other party at least thirty (30)
days prior to the expiration of the initial or such extended term, respectively.
Following a Change of Control, this Agreement shall be automatically extended
for successive two (2) year periods at the end of each term, unless either party
provides written notice of termination to the other party at least ninety (90)
days prior to the expiration of the initial or such extended term, respectively.
In the event that this Agreement is not renewed by the Company in accordance
with the provisions of this Agreement and XXXXX'x employment is thereafter
terminated, XXXXX shall be entitled to severance equal to nine (9) month's base
salary then in effect, which shall be paid in nine (9) equal monthly payments
payable on the first day of each month commencing on the first day of the month
following termination of this Agreement.
4. COMPENSATION AND BENEFITS.
4.1. SALARY. For the first year of the term of this
Agreement, Company shall pay to XXXXX, a base salary at a total annual rate of
$100,000 (the "Base Salary"), payable in cash. Base Salary shall be paid in
accordance with normal payroll procedures adopted by the Company for its
employees from time to time.
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4.2. COST OF LIVING INCREASE. XXXXX'x Base Salary shall
be automatically increased on October 1 of each year (the "Yearly Cash
Increase") by the greater of (i) five (5%) percent, or (ii) the percentage
increase, if any, of the consumer price index for Urban Wage Earning and
Clerical Workers (Greater Metropolitan Miami Area, all items) issued by the
Bureau of Labor Statistics of the U.S. Department of Labor using the year 1967
as a base of 100 (the "Index"). In the event the Index ceases to be published
during the term of this Agreement or any extension thereof, the parties shall
use a mutually acceptable comparable statistical index on the cost of living in
the United States as shall then be computed and published by an agency of the
United States. The Company Board of Directors shall have the discretion to grant
increases of Base Salary in excess of the amount provided herein.
4.3. BONUS. XXXXX shall be entitled to such bonuses or
incentive compensation as maybe determined from time to time by the Company's
Board of Directors in its sole discretion. The Company's Board of Directors or
any committee thereof may establish an incentive bonus plan for XXXXX which
would establish targeted profit and revenue levels, as well as other goals. The
Board shall have the full and complete discretion in the establishment, if at
all, of an incentive bonus plan for any given year or to grant additional or
discretionary bonuses to XXXXX during the term of this Agreement. Nothing set
forth herein shall obligate the Company to pay XXXXX any bonus or incentive
compensation.
4.4. STOCK OPTIONS. XXXXX shall be eligible from time to
time to receive grants of stock options, under a stock option plan or otherwise,
in such amounts and at such times as determined by the Board of Directors or any
committee thereof.
4.5. TERMINATION PAYMENT. In the event XXXXX'x employment
is terminated, prior to a Change of Control, in accordance with Sections 3.4 or
Section 3.5, XXXXX shall receive a termination payment ("Termination Payment")
equal to one (1) year of his then Base Salary. The Termination Payment shall be
payable in twelve (12) monthly installments on the first day of each month
commencing the month following termination, for a period of twelve (12) months
(the "Termination Period").
4.6. CHANGE OF CONTROL SEVERANCE PAYMENT. In the event
that XXXXX'x employment is terminated following a Change of Control in
accordance with Sections 3.4 or Section 3.5, XXXXX shall be entitled to the
Severance Payment equal to two (2) times his existing Base Salary. The Severance
Payment shall be paid 50% in cash on the effective date of such termination and
the balance in twelve (12) monthly payments on the last day of each month
thereafter.
4.7. ADDITIONAL BENEFITS.
4.7.1. VACATION. XXXXX shall be entitled to a
minimum of two (2) weeks paid vacation during each twelve-month period during
the term of this Agreement or such longer vacation as may be provided in any
policy adopted by the Company from time to time pertaining to its employees
generally. Any vacation not taken, will not be paid in cash and will not
cumulate from year to year. In addition, XXXXX shall be entitled to paid time
off for the same holidays as other employees of the Company as established by
the Company's Board of Directors and shall be permitted additional vacation days
for the Jewish holidays of Rosh Hashanah and Yom Kippur.
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4.7.2. AUTOMOBILE EXPENSES. During the term of this
Agreement, the Company shall pay to XXXXX an automobile expense allowance of
$500 per month. Such automobile allowance shall be inclusive of insurance,
gasoline, maintenance, depreciation and all other expenses for XXXXX'x personal
automobile.
4.7.3. REIMBURSEMENT OF EXPENSES. XXXXX shall be
reimbursed by the Company for all Business expenses which are reasonably
incurred by XXXXX in the performance of his duties under this Agreement. All
travel expenses shall be incurred and reimbursable in accordance with policy
established by the Board of Directors.
4.7.4. PARTICIPATION IN EMPLOYEE BENEFIT PLANS.
XXXXX shall be entitled to participate, subject to eligibility and other terms
generally established by the Company's Board of Directors, in any group
hospitalization, health, disability, profit sharing and pension, and other
benefit plans, as may be adopted or amended by the Company from time to time.
The Company shall pay the premiums on all health and dental insurance for XXXXX
and each of his dependents during the term hereof.
5. REPRESENTATIONS BY XXXXX. XXXXX hereby represents to the
Company that he is physically and mentally capable of performing his duties
hereunder and he has no knowledge of any present or past physical or mental
condition which would cause him not to be able to perform his duties hereunder.
6. CONFIDENTIALITY AND NON-DISCLOSURE OF INFORMATION.
6.1. CONFIDENTIALITY. XXXXX shall not, during the term of
this Agreement or at anytime thereafter, divulge, furnish or make accessible to
anyone without Company's prior written consent any knowledge or information with
respect to any confidential or secret aspect of the Business, including but not
limited to: the Company's costs; supplier's names, pricing and terms; customer
names, addresses and telephone numbers; billing procedures and pricing of
purchases; the Company's Business techniques, computer programs and printouts;
identity of prospective patients; confidential information disclosed by the
Company's customers to the Company; the Company's banking relationships,
including the extent and terms of lines of credit and borrowing costs; or other
information concerning the Business or its employees.
6.2. OWNERSHIP OF INFORMATION. XXXXX recognizes that all
records, customer lists, supplier lists, material cost data, files,
correspondence with customers and suppliers of material and services, computer
printouts, contracts, reports, notes, business plans, compilations of other
recorded matter, and copies or reproductions thereof, relating to the Company's
operations and activities and other information relating to the Company's
customers and suppliers, made or received by XXXXX in the course of his
employment are the exclusive property of the Company and XXXXX holds and uses
same as trustee for the Company and subject to the Company's sole control and
will deliver same to the Company at the termination of his employment, or
earlier if so requested by the Company in writing. All of such information which
if lost or used by XXXXX outside the scope of his employment could cause
irreparable and continuing injury to the Company's Business for which there may
not be an adequate remedy at law.
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7. RESTRICTIVE COVENANT. As an inducement to cause the Company to
enter into this Agreement, XXXXX covenants and agrees that during his employment
and, for a period of twelve (12) months after he ceases to be employed by the
Company, regardless of the manner or cause of termination:
7.1. RESTRICTION. XXXXX will not be an employee, agent,
director, stockholder or owner (except of not more than a controlling interest
in the voting securities of any publicly traded entity), partner, consultant,
financial backer, creditor or be otherwise directly or indirectly connected with
or participate in the management, operation or control of any Business, firm,
proprietorship, corporation, partnership, association, entity or venture engaged
in the provision of services or supplies similar to the Business (a "Competing
Business") within Dade, Broward of Palm Beach Counties.
7.2. SOLICITATION OF BUSINESS. XXXXX will not initiate
any contact with, call upon, solicit business from, sell or render services to
any customer of the Company with respect to a Competing Business in the
Restricted Area or purchase from any supplier or potential supplier any
materials for same and XXXXX shall not directly or indirectly aid or assist any
other person, firm or corporation to do any of the aforesaid acts.
7.3. SOLICITATION OF EMPLOYEES. XXXXX will not directly
or indirectly, as principal, agent, owner, partner, stockholder, officer,
director, employee, independent contractor or consultant or in any individual or
representative capacity for himself or on behalf of any business, firm,
corporation, partnership association or proprietorship, initiate contact with or
solicit, or directly or indirectly cause others to solicit the employment of any
officer, sales person, agent, or other employee of the Company, for the purpose
of causing said officer, sales person, agent or other XXXXX to terminate
employment with the Company for the purpose of obtaining employment by a
Competing Business.
7.4. MATERIAL VIOLATION. A violation of Sections 6 or 7
of this Agreement shall constitute a material and substantial breach of this
Agreement and shall result in the imposition of the Company's remedies contained
in Section 8.
7.5. OTHER EMPLOYMENT. It is understood by and between
the parties that the covenants set forth in Sections 6 and 7 are essential
elements of this Agreement, and that, but for the agreement of the XXXXX to
comply with such covenants, the Company would not have entered into this
Agreement. Such covenants by the XXXXX shall be construed as agreements
independent of any other provision of this Agreement and the existence of any
claim or cause of action XXXXX may have against the Company whether predicated
on this Agreement or otherwise (other than for Termination or Severance
Payments), shall not constitute a defense to the enforcement by the Company of
these covenants.
7.6. ACKNOWLEDGMENT. XXXXX acknowledges and confirms that
the length of the term and geographic restrictions contained in this Agreement
are fair and reasonable and not the result of overreaching, duress or coercion
of any kind. XXXXX further acknowledges and confirms that his full, uninhibited
and faithful observance of each of the covenants contained in this Agreement
will not cause any undue hardships, financial or otherwise and that enforcement
of this Agreement will not impair XXXXX'x ability to obtain employment
commensurate with XXXXX'x abilities and on terms fully acceptable to XXXXX.
XXXXX acknowledges that XXXXX will
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be receiving significant information regarding the Business which XXXXX has not
previously received and would not receive without being employed by the Company.
XXXXX acknowledges and confirms that such information would cause the Company
serious injury and loss if used by XXXXX for the benefit of a competitor.
7.7. DEFAULT ON TERMINATION OR SEVERANCE PAYMENTS. If for
any reason, the Company fails to make any Termination or Severance Payment as
may be required, in addition to any other remedies XXXXX may have as a result of
such default, the provisions of Section 7 herein shall be null and void and
unenforceable by the Company if any such default is not cured within ten (10)
days written notice.
8. REMEDIES. XXXXX hereby acknowledges, covenants and agrees that
in the event of a material default or breach by XXXXX under this Agreement:
8.1. INJUNCTIVE RELIEF. The Company would suffer
irreparable and continuing damages as a result of such breach and its remedy at
law will be inadequate. XXXXX agrees that in the event of a violation or breach
of this Agreement, in addition to any other remedies available to it, Company
shall be entitled to an injunction restraining any such default or any other
appropriate decree of specific performance, without the requirement to prove
actual damages or to post any bond or any other security and to any other
equitable relief the court deems proper; and
8.2. NON-EXCLUSIVE REMEDY. Any and all of the Company's
remedies described in this Agreement shall not be exclusive and shall be in
addition to any other remedies which the Company may have at law or in equity
including, but not limited to, the right to monetary damages.
9. SEVERABILITY. The invalidity of any one or more of the words,
phrases, sentences, clauses, sections, subdivisions, or subparagraphs contained
in this Agreement shall not affect the enforceability of the remaining portions
of this Agreement or any part thereof, all of which are inserted conditionally
on their being legally valid. In the event that one or more of the words,
phrases, sentences, clauses, sections, subdivisions, subparagraphs, or articles
are determined to be unenforceable and if such invalidity shall be caused by the
length of any period of time or the size of any area set forth in any part
hereof, such period of time or such area, or both, shall be considered to be
reduced to a period or area which would cure such invalidity.
10. INDEMNIFICATION. The Company agrees to indemnify XXXXX for
any and all liabilities to which he may be subject as a result of his service to
the Company as an officer, director, or agent or of any other enterprise in
which he serves at the request of the Company, or otherwise as a result of his
employment hereunder, including all expenses, including legal fees and costs
incurred as a result of any proceedings brought or threatened against XXXXX, to
the fullest extent permitted by law. Counsel's fees, to the fullest extent
permitted by law, shall be paid by the Company in advance of any final
disposition of a proceeding upon receipt of an undertaking by XXXXX that he will
repay such fees if it is ultimately determined by a court of competent
jurisdiction that he is not entitled to indemnification.
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11. SUCCESSORS AND ASSIGNS.
11.1. SUCCESSORS. This Agreement shall be binding upon
the parties hereto and their Successors and assigns. For purposes of this
Agreement, the term "Successor" of Company shall include:
(a) any person or entity, whether direct or
indirect, whether by purchase, merger, consolidation, operation of law,
assignment, or otherwise acquires or controls:
(i) all or substantially all of the
assets of Company; or
(ii) thirty percent (30%) or more
of the total voting securities of the Company, and
was not affiliated with or in common control of
Company as of the Commencement Date;
(iii) through any other Business
combination with or without the consent of
Company's shareholders.
11.2. ASSUMPTION. The Company shall require any Successor
to expressly assume and agree to be bound by the terms of this Agreement in the
same manner and to the same extent that the Company would be required to perform
if no succession had occurred. The Company shall be in material breach of this
Agreement if any such successor fails to expressly assume or otherwise agree to
guaranty performance of this Agreement to the extent the Company was obligated
prior to any succession.
11.3. ASSIGNMENT. Except as expressly stated in Section
11.1 above, this Agreement shall be non-assignable by either the Company or
XXXXX without the written consent of the other party, it being understood that
the obligations and performance of this Agreement are personal in nature.
12. NOTICE. Any notices or other communications to any party
pursuant to or relating to this Agreement must be in writing and shall be deemed
to have been given or delivered when (i) hand-delivered, (ii) mailed through the
U.S. Postal Service via certified mail, return receipt requested, postage
prepaid, or (iii) through a nationally recognized overnight courier, or (iv) via
facsimile, to the party at their addresses below:
XXXXX: 0000 Xxxxx 00xx Xxxxxx
Xxxxxxxxx, Xxxxxxx 00000
The Company: MED/WASTE, INC.
0000 X.X. 000xx Xxxxxx, Xxx X
Opa Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
with a copy to: XXXXX X. XXXXXX, ESQ.
Wallace, Bauman, Fodiman & Xxxxxxx, P.A.
0000 Xxxxx xx Xxxx Xxxxxxxxx, Xxxxx Xxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
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or such other address given by such party to the other party at any time
hereafter.
13. ENTIRE AGREEMENT. This Agreement contains the sole and entire
agreement between the parties with respect to the subject matter hereof.
14. AMENDMENT. No amendment, waiver or modification of this
Agreement or any provisions of this Agreement shall be valid unless in writing
and duly executed by both parties.
15. BINDING AGREEMENT. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective heirs, legal
representatives, successors and assigns.
16. WAIVER. Any waiver by any party of any breach of any
provision of this Agreement shall not be considered as or constitute a
continuing waiver or waiver of any other breach of any provision of this
Agreement.
17. CAPTIONS. Captions contained in this Agreement are inserted
only as a matter of convenience or for reference and in no way define, limit,
extend, or describe the scope of this Agreement or the intent of any provisions
of this Agreement.
18. ATTORNEYS' FEES. In the event of any litigation arising out
of this Agreement, the prevailing party shall be entitled to recover its
attorneys' fees and costs, including attorneys' fees and costs incurred on
appeal.
19. GOVERNING LAW. This Agreement shall be governed by the laws
of the State of Florida.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the day and year first above written.
MED/WASTE, INC., a Delaware corporation
By:
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XXXXXX X. XXXXXXX, President
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XXXXXXX XXXXX
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