EXHIBIT 6.2
EMPLOYMENT AND CONFIDENTIALITY AGREEMENT
STATE OF TEXAS
COUNTY OF LIBERTY
This Agreement is made and entered into in Hardin, Liberty County, Texas,
on this the 5th day of July, 1999, by and between Fleetclean Systems, Inc., a
Texas corporation with its principal office located in Hardin, Liberty County,
Texas (hereinafter referred to as "Fleetclean" and /or "Company") and Xxx
Xxxxxxx, an individual residing at 4165 Rhone Dr., Kenner, Louisiana,
(hereinafter referred to as "Xxxxxxx").
RECITALS
WHEREAS, Fleetclean desires to retain the services of Xxxxxxx as an
employee of Fleetclean on the terms and conditions hereinafter set forth.
WHEREAS, Fleetclean will maintain and employ Xxxxxxx at its Hahnville,
Louisiana facility, and other locations as may be needed from time to time.
NOW THEREFORE, in consideration of the mutual covenants and promises, the
receipt and sufficiency of such mutual consideration is hereby acknowledged and
confessed by Fleetclean and Xxxxxxx, and to induce Fleetclean to hire Xxxxxxx on
the terms and conditions hereinafter, Fleetclean and Xxxxxxx hereby agree as
follows:
I.
EMPLOYMENT
Fleetclean shall employ Xxxxxxx as a full time employee, and Xxxxxxx
hereby accepts such employment with Fleetclean, upon the terms and conditions
hereinafter set forth.
II.
DUTIES DURING EMPLOYMENT PERIOD
X. Xxxxxxx shall perform and discharge well and faithfully such management
and other duties for Fleetclean and its subsidiaries and affiliates, as may be
assigned to him from time to time by President, Xxxxxxx Xxxxxxxx, The Executive
Committee or the Board of Directors of Fleetclean. Xxxxxxx shall devote his full
time, attention and energies to the business of Fleetclean, and shall not during
the terms of this Agreement be employed in any other business activity, whether
or not such activity is pursued for gain, profit or other pecuniary advantage;
B. During the term of this agreement, Fleetclean and its affiliates and
subsidiaries shall, within their best efforts, continue to operate and maintain
Fleetclean in its Liberty County, Texas office or in any future locations, if
any, as may be deemed necessary or advantageous in Fleetclean's sole discretion
in a manner and method consistent with the past business of Fleetclean and shall
use its best efforts to have adequate liquidity and capital to insure the
continued success of Fleetcean, its affiliates and subsidiaries, as well as the
obligations set forth herein from Fleetclean to Xxxxxxx.
III.
TERM OF EMPLOYMENT
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The employment under Section II. of this Agreement shall be for a period
(the "Employment Period") commencing on the date hereof and ending after twenty
four (24) months from the date hereof or at the termination of this Agreement
under Section V, unless sooner terminated in accordance with one of the
following alternatives:
X. Xxxxxxx'x employment under Section II, if not already terminated under
clause B of this Section III, may be terminated at any time during the
Employment Period for Cause (as hereinafter defined) by action of the Board of
Directors of Fleetclean upon giving Xxxxxxx notice of such termination at least
thirty (30) days prior to the date upon which termination shall take effect. As
used herein, the term "Cause" shall mean any of the following events.
1. Xxxxxxx'x conviction of or pleas of guilty or NOLO CONTENDERE to
a crime involving a felony.
2. Xxxxxxx'x intentional and willful failure to follow the good
faith instructions to perform usual and necessary duties under this
Agreement, of President, Xxxxxxx Xxxxxxxx, the Executive Committee
referred to in Section II or the Board of Directors of Fleetclean
following written notice thereof; or
3. Xxxxxxx'x fraud, willful misconduct, insubordination, or, neglect
of duties or failure to act with respect to duties or actions provided
under this Agreement previously communicated to Xxxxxxx by President,
Xxxxxxx Xxxxxxxx, the Executive Committee or the Board of Directors of
Fleetclean.
X. Xxxxxxx'x employment under Section II may be terminated at any time
following twenty four (24) months after the date hereof, by action of the Board
of Directors of Fleetclean, upon giving Xxxxxxx notice of such termination at
least thirty (30) days prior to the date on which such termination shall take
effect. If Xxxxxxx'x employment is terminated under the provisions of this
clause B, his rights pursuant to Section IV shall cease as of the effective date
of such termination.
IV.
COMPENSATION AND RELATED MATTERS
A. For services rendered by Xxxxxxx hereunder, Fleetclean shall pay him as
compensation during this Employment Period as follows:
(a) From the beginning of the first month of this agreement, until
termination as provided herein, by either party, a salary of $4416.67 per
month.
(b) Xxxxxxx shall receive as a one time employment bonus fifty
thousand (50,000) shares of Fleetclean common stock, to be delivered to
Xxxxxxx within 30 days of the commencement of this agreement, plus a one
time cash bonus of $1,019.23 payable at the commencement of employment.
B. Vacation and Sick Leave. Xxxxxxx is entitled to vacation and sick leave
in accordance with the standard policy of Fleetclean as it applies to all
employees and as it may be arnended from time to time.
C. Insurance. Fleetclean shall include Xxxxxxx under Fleetclean's group
health and major medical insurance, life insurance programs and long term
disability insurance, if any, with the same coverage and options that are
available under said policies to all executives of Fleetclean.
D. Stock Options. Fleetclean shall include Xxxxxxx under any stock option
program which may be offered to employees or executives in accordance with the
policy of Fleetclean as it applies to all employees and as it may be amended
from time to time.
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V.
NON-COMPETITION AGREEMENT
A. This Noncompetition Agreement is by and between Xxxxxxx and Fleetclean
Systems, Inc., a Texas Corporation.
B. To induce Fleetclean to enter into this Employment Agreement, Employee
has agreed to enter into this Non-Competition Agreement.
NOW, THEREFORE, in consideration of the premises and other good and
valuable considerations, the receipt and sufficiency of which are hereby
acknowledged, the Company and Xxxxxxx hereby covenant and agree as follow:
(a) Covenant Not To Compete. Employee hereby covenants that commencing
upon the day hereof and continuing for a period of Two (2) years after the
termination of this Agreement, Xxxxxxx or any affiliate of Xxxxxxx will not,
unless acting as an officer or employee of the Company (Fleetclean) or any of
its subsidiaries, own, manage, operate, join, control, or participate in,
directly or indirectly, or derive any benefits whatever from, or be an officer,
director, employee, partner, agent, consultant or shareholder of, any business
engaged in any activity that is in "Competition" in any manner whatsoever with
the business of the Company in the "Specified Geographical Area" and Xxxxxxx
shall not render assistance or advice to any person, firm, or enterprise which
is so engaged. For purposes of this paragraph,
(i) "Competition" means the manufacture, marketing, sale or
distribution of any chemicals or equipment or service targeted for cleaning
services in the trucking industry or other related transportation businesses
including boats, airplanes, and cars, which is the same or similar to, that of
the Company.
(ii) "Specified Geographical Area" means, any area within a
one hundred (100) mile radius of any city or county in any state or country in
which, at any time, during the the period July 1, 1999, through the date of
termination of this Employment Agreement, the Company had customers for its
products or delivered its products or services to or for customers; and
(iii) "Affiliate" means any individual, corporation,
partnership, trust, unincorporated organization, association, or other entity,
that directly or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, Xxxxxxx.
(b) Payments in Consideration of Covenant Not to Compete. In consideration
of the covenants set forth above, the Company has contemporaneously with the
execution hereof, agreed to pay good and valuable consideration to Xxxxxxx.
Furthermore, the Company shall pay to Xxxxxxx as continuing consideration hereof
the sums set forth in Article IV above, subject to Article III above.
(c) Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter of this
non-competition agreement and supersedes and is in full substitution for any and
all prior agreements and understandings whether written or oral between parties
relating to the subject matter of this Non-Competition Agreement.
(d) Offsets. In the event of a breach hereof by Xxxxxxx, the Company shall
have the right to immediately offset any amounts for which it is obligated to
pay Xxxxxxx against any amounts payable by the Company pursuant to Article IV
above, at the time of the breach.
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(e) Amendment. This Agreement may not be amended or modified in any
respect except by an agreement in writing executed by the parties in the same
manner as this Agreement.
(f) Assignment. This Non-Competition Agreement may be assigned by the
Company without the consent of Xxxxxxx in connection with the sale, transfer, or
other assignment of all or substantially all of the assets of, or the merger of,
the Company.
(g) Successor. This Agreement shall be binding upon and shall inure to the
benefit of and be enforceable by the Company and its respective successors and
assigns.
(h) Invalid Provisions. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under present or future law effective during
the term hereof, such provision shall be fully severable. This Agreement shall
be construed as enforced as if such illegal, invalid or unenforceable provision
had never comprised a part hereof and the remaining portions hereof shall remain
in full force and effect and shall not be effected by the illegal, invalid, or
unenforceable provision or by its severance herefrom. Furthermore, in lieu of
such illegal, invalid or unenforceable provision there shall be automatically as
part of this Agreement a provision similar in terms to such illegal, invalid, or
unenforceable provision as may be possible and be legal, valid, and enforceable.
(i) Specific Performance. Xxxxxxx acknowledges that his breach of the
provisions of Article V will cause irrevocable harm to the Company, for which
there may be no adequate remedy at law and for which the ascertainment of
damages would be difficult. Therefore, the Company shall be entitled, in
addition to, and without having to prove the inadequacy of, other remedies at
law (including without limitation damages for prior breaches hereof), to
specific performance of this Agreement, as well as injunctive relief (without
being required to post bond or other security).
(j) Notice. All notices, consents, requests, approvals, or other
communications in connection with this Agreement and all legal process in regard
hereto shall be in writing and shall be deemed validly delivered, if delivered
personally or sent by certified or registered mail, postage prepaid. Unless
changed by written notice pursuant hereto, the address of each party for the
purposes hereof are as follows:
If to Xxxxxxx:
Xxx Xxxxxxx
0000 Xxxxx Xx.
Xxxxxx, Xxxxxxxxx 00000
If to the Company:
Fleetclean Systems Inc.
X.X. Xxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx Xxxxxxxx, President
Notice given by mail as set out above shall be deemed delivered when actually
deposited in the mail.
VI.
DISABILITY AND DEATH
A. Disability. Notwithstanding any failure or inability of Xxxxxxx
during the Term, because of illness, or similar incapacity, whether physical
or mental ("Disability"), to perform the obligations as
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contemplated by this Agreement, Fleetclean nevertheless shall continue to pay
Xxxxxxx the compensation and benefits provided for in Section IV hereof and all
other benefits provided by this agreement, except as provided otherwise in this
section VI.
1. Obligations of Fleetclean. In the event a Disability of Xxxxxxx
continues for a period of more than one (1) consecutive months out of the term
of twelve (12) months, Fleetclean may, at its option, at any time on or after
the last day of the aforesaid one month Disability period, by written notice to
Xxxxxxx (the "Disability Notice"), declare Xxxxxxx "disabled" and this Agreement
shall terminate with no further liability on the part of Fleetclean; however
such notice shall be of no force and effect if Xxxxxxx has resumed the duties
and responsibilities provided hereunder prior to the delivery of the Disability
Notice.
2. Obligations of Xxxxxxx. Xxxxxxx, by entering into this agreement
certifies that he is physically and mentally able to perform the managerial
functions as may be required under the terms of this agreement, and expressly
agrees to undergo a physical examination at the Company's expense, by a doctor
of the company's choosing, prior to the effective date of this agreement. In the
event that the examination reveals any pre-existing condition, which in the sole
judgment of the company, on advice of the company's selected doctor, would
render Wallace unable to perform the duties and responsibilities required under
this agreement, this agreement is canceled and Fleetclean will have no further
obligation to Xxxxxxx.
B. Death. In all respects, this agreement shall be deemed to terminate
upon the death of Xxxxxxx.
VII.
DISCLOSURE INFORMATION
Xxxxxxx acknowledges that Fleetclean's trade secrets, private or secret
processes as they may exist from time to time, and confidential information
concerning their products, development, all technical information, procurement
and sales activities and procedures, promotion and pricing techniques and credit
and financial data concerning customers are valuable, special and unique assets
of Fleetclean and its affiliates or subsidiaries, access to and knowledge of
which are essential to the performance of Xxxxxxx'x duties hereunder. In light
of the highly competitive nature of the industry in which Fleetclean's and its
affiliates' or subsidiaries' business is conducted, Xxxxxxx further agrees that
all knowledge and information described in the preceding sentence not in the
public domain and heretofore or in the future obtained by him as a result of
this employment by Fleetclean or its affiliates or subsidiaries shall be
considered confidential information. In recognition of this fact, Xxxxxxx agrees
that he will not, during or after the Employment Period, disclose any of such
secrets, processes or information to any person or their entity for any reason
or purpose whatsoever, except as is necessary in the performance of his duties
as an employee of Fleetclean or its subsidiaries and then only upon a written
confidentiality agreement in such form and content as requested by Fleetclean
from time to time; nor shall Xxxxxxx make use of any such secrets, processes or
information (other than information in the public domain) under any
circumstances during the Employment Period, or for a period not to exceed
twenty-four (24) months after termination of Xxxxxxx'x employment with
Fleetclean.
VIII.
COMPANY RIGHT TO PATENTS, TITLES, SCRIPTS AND DATA
X. Xxxxxxx shall promptly disclose, grant and assign to Fleetclean for
its sole use and benefit any and all technical information relating in any way
to the products of Fleetclean, developed or acquired, during the Employment
Period, together with all patent applications, letters patent, or copyrights, if
any, in the name of Xxxxxxx that may at any time be granted for or upon any such
technical information. In connection therewith, Xxxxxxx shall promptly at all
times during and after the Employment Period:
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1. Execute and deliver such applications, assignments, descriptions and
other instruments as may be necessary or proper in the opinion of Xxxxxxx to
vest in Fleetclean title to such technical information or patent applications,
if any, in the name of Xxxxxxx to enable it to obtain and maintain the entire
right and title thereto throughout the world; and
2. During the term of the Agreement render to Fleetclean at its expense
all such assistance as it may require in the prosecution of applications for
said patents or reissues thereof, in the prosecution or defense of interferences
which may be declared involving any said application or patents, and in any
litigation in which Fleetclean or its subsidiaries may be involved relating to
any such patents.
B. Upon termination of this Agreement, Xxxxxxx or his personal
representative shall promptly deliver to the Company all books, memoranda,
plans, records and written data of every kind relating to the business and
affairs of the Company which are then in his possession.
IX.
NOTICES
Any notice required or permitted to be given under this Agreement shall be
deemed properly given if in writing and if mailed by certified or registered
mail, postage prepaid with return receipt requested, to his residence in the
case of notices to Xxxxxxx, or to the principal office of Fleetclean, to the
attention of its President.
X.
WAIVER
It is Expressly agreed and understood that the waiver by a party of its
rights, or any portion of its rights, under this Agreement in any particular
instance or instances, whether intentional or otherwise, shall not be considered
as a continuing waiver which would prevent the subsequent enforcement of such
rights.
XI.
ASSIGNMENTS
This Agreement shall not be assignable by Xxxxxxx without the written
consent of Fleetclean; and, only after full disclosure of all terms and
ramifications of said assignment has been made by Xxxxxxx. This Agreement is
assignable by Fleetclean and/or any of its subsidiaries to any successor in
interest of Fleetclean's or its subsidiaries' business.
XII.
SUCCESSORS
This Agreement shall be binding on the assignees, heirs, administrators,
executors, spouses, successors and legal representatives of both parties hereto.
XIII.
ENTIRE AGREEMENT
This instrument contains the entire agreement of the parties or of
Fleetclean and Xxxxxxx relating to the subject matter hereof, and supersedes and
replaces in its entirety any existing Agreement between Fleetclean and Xxxxxxx.
XIV.
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SURVIVAL
Any termination of this Agreement shall not affect the provisions of
Sections V, VII, or VIII, which shall survive such termination in accordance
with its terms.
XV.
CHOICE OF LAW AND VENUE
This Agreement shall be subject to and governed by the law of the State of
Texas. Venue for any dispute arising out of or relating to this Agreement shall
be in Liberty County, Texas.
XVI.
HEADINGS
The headings of the Sections hereof are for convenience only and shall not
control or affect the meaning, or construction, or limit the scope or intent of
any of the provisions of this Agreement.
XVII.
COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original but all of which together shall constitute one and
the same instrument.
XVIII.
MISCELLANEOUS
It is anticipated that variances and deviations from certain provisions of
this Agreement may be necessary and may be allowed or tolerated, but it is
agreed that such variances or deviations, regardless of number, shall not be
reason for altering or modifying the interpretation of any portion of this
Agreement.
WITNESS our hand this the 22nd day of June, A.D., 1999, in the execution
of three (3) original counterparts of this Agreement, each of said counterpart
copies which are originally executed having the force and effect of an original
for any and all purposes.
FLEETCLEAN SYSTEMS INC.
/s/ XXXXXXX X. XXXXXXXX /s/ XXX XXXXXXX
BY: XXXXXXX X. XXXXXXXX XXX XXXXXXX
Title: President
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