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EXHIBIT 10
EMPLOYMENT AGREEMENT
This Agreement is entered into this 20th day of June, 2000 by and between PDG
ENVIRONMENTAL, INC., a Delaware corporation (hereinafter referred to as the
"Company"), and XXXX X. XXXXX (hereinafter referred to as "Executive") under the
following terms and conditions:
RECITALS:
WHEREAS, the company and Executive desire to set forth the terms and conditions
on which (i) the Company shall employ Executive, (ii) Executive shall render
services to the Company, and (iii) the Company shall compensate Executive for
such services; and
WHEREAS, in connection with the employment of Executive by the Company, the
Company desires to restrict Executive's rights to compete with the business of
the Company;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements hereinafter set forth, the parties hereto agree as follows:
1. EMPLOYMENT.
The Company hereby employs Executive and Executive hereby accepts employment
with the Company upon the terms and conditions hereinafter set forth.
2. TERM.
2.1 The term of this Agreement (the "Term") shall be for a three year period
commencing on the Effective Date (as defined in Subsection 2.3 below) of this
Agreement, subject, however, to termination as provided herein in Sections 6 and
7 below.
2.2 Each year, prior to the anniversary date, the company and executive
shall meet to determine any additional compensation, if any, for the remaining
contract term.
2.3 The effective date of this Agreement shall be March 15, 2000 (the
"Effective Date").
3. COMPENSATION.
3.1 For all services rendered by Executive under this Agreement, the Company
shall pay or cause one or more of its subsidiaries to pay Executive during the
term hereof a salary at the rate of Two Hundred Twenty Thousand Dollars
($220,000) per year. The Company shall pay such compensation to Executive
monthly in accordance with its standard practice for payment of compensation to
its employees.
3.2 Executive shall be entitled to periodic cash bonuses in addition to
stock bonuses in accordance with the PDG Environmental, Inc. stock option and
incentive plans now in effect or hereafter adopted, any other incentive bonus
plans or other forms of compensation, at the discretion of the Company's Board
of Directors, dependent upon Employee's performance. Executive shall be entitled
to participate in the Company's 401(k) plan, if available.
3.3 Executive shall be entitled to normal benefits for all PDG
Environmental, Inc. employees, plus additional benefits currently in place,
including but not limited to, the following:
(a) Use of a company vehicle;
(b) Club memberships;
(c) Supplemental life and disability insurance;
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(d) Temporary living expenses at branch office location that require
executives presence for longer periods of time than customary office visits;
(e) Initiation fees for club memberships that are deemed necessary for high
level business and corporate development; and
(f) Professional financial planning and tax return preparation.
3.4 All compensation shall be subject to customary withholding tax and other
employment taxes as are required with respect to compensation paid by a
corporation to an employee.
3.5 In order to provide proper incentives to those officers engaged in
creating shareholder value in the Company, the Company recognizes that it must
institute incentive bonus programs from time to time. For the fiscal years 2001
and 2002, the Compensation Committee has approved an incentive bonus program as
follows:
3.5.1 Incentive Bonus Program. For the fiscal years 2001 and 2002, the
Board of Directors has set two major objectives for the Executive. The
objectives are keeping the Company properly capitalized for growth, and
respecting the public market participation in the Company to ensure that gains
made by the Company are recognized by its public ownership and reflected in its
share price. To the extent that these objectives are achieved, the Executive
shall be entitled to a minimum of twenty percent (20%) of his base salary to a
maximum of one hundred percent (100%) of base salary.
It is expected that the foregoing bonuses will be earned in fiscal 2001, if the
price of the Company's shares (adjusted for changes in capitalization) traded at
or above $1.50 (on average) for 30 or more trading days in such fiscal year. It
is expected that the Board of Directors will provide additional bonus incentives
for years subsequent to 2001, provided that for the life of the contract there
will always be at least a minimum incentive bonus of twenty percent (20%) of
base salary, payable in April of each year, depending upon the extent to which
Board objectives are achieved.
4. DUTIES AND RESPONSIBILITIES.
4.1 Executive shall, during the Term of this Agreement unless otherwise
agreed by management, devote his full attention and expend his best efforts,
energies, and skills on a full-time basis, to the business of the Company and
any corporation controlled by the Company (each, a "Subsidiary"). The Company
acknowledges that Executive may from time to time be engaged in other business
activities separate from and outside the scope of the business of the Company.
The Company agrees that the devotion of reasonable amounts of time to such other
business activities will not violate the terms of this Agreement on the
conditions that (i) such activities are not corporate opportunities of the
Company; and (ii) such activities do not interfere with the performance of
Executive's duties hereunder. For purposes of this Agreement, the term the
"Company" shall mean the Company and all Subsidiaries. Executive shall be
headquartered in the Pittsburgh, Pennsylvania area.
4.2 During the Term of this Agreement, Executive shall serve as the Chairman
and Chief Executive Officer of the Company or in such other capacities as
determined by the Board of Directors or its Executive Committee except as
provide for under Subsection 7.1. In the performance of all of his
responsibilities hereunder, Executive shall be subject to all of the Company's
policies, rules, and regulations applicable to its executive of comparable
status and shall report directly to, and shall be subject to, the direction and
control of the Executive Committee of the Company and shall perform such duties
as shall be assigned to him by the Board of Directors or the Executive
Committee. In performing such duties, Executive will be subject to and abide by,
and will use his best efforts to cause other employees of the Company to be
subject to and abide by, all policies and procedures developed by the Executive
Committee or senior management of the Company.
4.3 To induce the Company to enter into this Agreement, Executive represents
and warrants to the Company that (i) Executive is not a party or subject to any
employment agreement or arrangement with other person, firm, company,
corporation or other business entity, (ii) Executive
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is subject to no restraint, limitation or restriction by virtue of any law or
rule of law or otherwise which would impair Executive's right or ability
(a) to enter the employ of the Company, or (b) to perform fully his duties
and obligations pursuant to this Agreement.
5. RESTRICTIVE COVENANTS.
5.1 Executive acknowledges that (i) he has a major responsibility for the
operation, administration, development and growth of the Company's business,
(ii) the Company's business has become national in scope, (iii) his work for the
Company has brought him and will continue to bring him into close contact with
confidential information of the Company and its customers, and (iv) the
agreements and covenants contained in this Subsection 5.1 are essential to
protect the business interests of the Company and that the Company will not
enter into this Agreement but for such agreements and covenants. Accordingly,
Executive covenants and agrees as follows:
5.1.1 Except as otherwise provided for in this Agreement, during the Term of
this Agreement Executive shall not, directly or indirectly, compete with respect
to any services or products of the Company which are either offered or are being
developed by the Company as of the date of termination; or, without limiting the
generality of the foregoing, by or become, or agree to be or become, interested
in or associated with, in any capacity (whether as a partner, shareholder,
owner, officer, director, Executive, principal, agent, creditor, trustee,
consultant, co-venturer or otherwise) any individual, corporation, firm,
association, partnership, joint venture or other business entity, which competes
with respect to any services or products of the Company which are either offered
or are being developed by the Company as of the date of termination; provided,
however, that Executive may own, solely as an investment, not more than one
percent (1%) of any class of securities of any publicly held corporation in
competition with the Company whose securities are traded on any national
securities exchange in the United States of America.
5.1.2 During the Term of this Agreement and, for one year thereafter
("Termination Period"), Executive shall not, directly or indirectly, (i) induce
or attempt to influence any employee of the Company to leave its employ, (ii)
aid or agree to aid any competitor, customer or supplier of the Company in any
attempt to hire any person who shall have been employed by the Company within
the one (1) year period preceding such requested aid, or (iii) induce or attempt
to influence any person or business entity who was a customer or supplier of the
Company during any portion of said period to transact business with a competitor
of the Company in Company's business.
5.1.3 During the Term of this Agreement, the Termination Period and any time
thereafter, Executive shall not disclose to anyone any information about the
confidential or proprietary affairs of the Company, including without
limitation, trade secrets, trade "know-how", inventions, customer lists,
business plans, operational methods, pricing policies, marketing plans, sales
plans, identity of suppliers or customers, sales, profits or other financial
information, which is confidential to the Company or is not generally known in
the relevant trade, nor shall Executive make use of any such information for his
own benefit.
5.2 If Executive breaches Subsection 5.1 (the "Restrictive Covenants"), the
Company shall have the following rights and remedies, each of which shall be
enforceable, and each of which is in addition to, and not in lieu of, any other
rights and remedies available to the Company at law or in equity.
5.2.1 Executive acknowledges and agrees that in the event of a violation or
threatened violation of any of the provisions of Subsection 5.1.1, the Company
shall have no adequate remedy at law and shall therefore be entitled to enforce
each such provision by temporary or permanent injunctive or mandatory relief
obtained in any court of competent jurisdiction without the necessity or
proving damages, posting any bond or other security, and without prejudice to
any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to be
invalid or unenforceable, the same shall not affect the remainder of the
covenant or covenants, which shall be given full effect, without regard to the
invalid or unenforceable portions. Without limiting the
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generally of the foregoing, if any of the Restrictive Covenants, or any part
thereof, is held to be unenforceable because of the duration of such provision
or the area covered thereby, the parties hereto agree that the court making such
determination shall have the power to reduce the duration and/or area of such
provision and, in its reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce
the Restrictive Covenants upon the courts of any jurisdiction within the
geographical scope of such Restrictive Covenants. In the event that the courts
of any one or more of such jurisdictions shall hold such Restrictive Covenants
wholly unenforceable by reason of the breadth of such scope or otherwise, it is
the intention of the parties hereto that such determination not bar or in any
way affect the Company's right of the relief provided above in the courts of any
other jurisdictions within the geographical scope of such Restrictive Covenants,
as to breaches of such covenants in such other respective jurisdictions, the
above covenants as they relate to each jurisdiction being, for this purpose,
severable into diverse and independent covenants.
6. TERMINATION.
6.1 The basic three-year term shall automatically be renewed each year on
the anniversary date of this Agreement, unless the Company elects to terminate
the Agreement. Upon election to terminate the Agreement, the Company may
exercise two options.
(i) It may ask Executive to leave the day-to-day employ of the Company and
remain as a consultant; or
(ii) sever all relationships with the Company whatsoever.
In either case, the Executive shall be entitled to compensation, as defined in
Sections 3.1 (base salary) and 3.3(c) (life and disability insurance), and
medical insurance coverage, during the remainder of the three-year term.
6.2 The Company also may terminate Executive's employment under this
Agreement at any time for Cause. "Cause" shall exist for such termination if
Executive (i) is adjudicated guilty of illegal activities involving moral
turpitude by a court of competent jurisdiction, (ii) commits any act of fraud or
intentional misrepresentation intended to harm the Company, (iii) has engaged in
serious misconduct, which conduct has, or would, if generally known, materially
adversely affect the good will or reputation of the Company and which conduct
Executive has not cured or altered within ten (10) days following written notice
by the Board to Executive regarding such conduct, (iv) is in material breach
under this Agreement, or (v) Executive habitually fails to perform the duties
and responsibilities of his employment as set forth in Section 4 of this
Agreement or as may be assigned or delegated to him from time to time by the
Company, the Board, or the Executive Committee of the Board, and, with regard to
grounds (iv) and (v) the Board has given Executive thirty (30) days written
notice of the grounds for the termination and the conduct required by Executive
to cure such failure, with such conduct outlined with reasonable specificity,
and Executive has not cured such failure, within the thirty (30) day period
provided in the written notice to Executive.
6.3 If the Company terminates Executive's employment under this Agreement
pursuant to the provisions of Subsections 6.2, Executive shall be entitled to
receive only six months severance pay, as defined in Sections 3.1 (base salary)
and 3.3(c) (life and disability insurance) and medial insurance coverage
generally available to employees of the Company.
6.4 If Executive's employment with the Company is terminated due to the
death or permanent disability of Executive, the spouse of the Executive, the
estate of Executive or the Executive, as the case may be, shall continue to
receive compensation as determined in Section 7 below.
6.5 If Executives's employment with the Company is terminated as the result
of Executive's purely voluntary resignation for reasons other than those set
forth in Section 7 below, Executive shall not be entitled to compensation after
the effective date of such resignation. For purposes of
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this subsection 6.5, a voluntary termination does not include termination
initiated by the Executive in such circumstances as an unfavorable change in his
duties and responsibilities or reporting responsibilities, the requirements that
the Company or his primary office be located outside the greater Pittsburgh
area, or a reduction in base salary proposed by the Board. A termination of the
nature described in the preceding sentence shall be considered a termination by
the Board of Directors of the Company without "Cause" for purposes of this
Agreement.
6.6 If Executive's employment ceases for any reason, other than pursuant to
6.2(ii), then Executive will be forgiven any amounts owing by him to Company on
the date of such termination.
7. TERMINATION COMPENSATION.
7.1 Compensation as defined in Sections 3.1 (base salary) and 3.3(c) (life
and disability insurance) above shall continue for a period of three (3) years
following the date of termination in the event: (i) Executive is requested to
resign pursuant to Section 6.1; (ii) inability to discharge his responsibilities
due to health or a disability in which case, after six months of such a
condition, the Board may cancel the contract pursuant to paragraph 6.1 (i.e.,
the severance benefits); or (iv) the Executive resigns due to substantial change
in ownership or Board membership as defined below.
7.2 A substantial change in ownership shall mean: (i) the sale of over 50%
of the corporation's assets, or (ii) a change in ownership of over 30% of the
outstanding stock of the Company; or (iii) the replacement or change of over 65%
of the Board in one fiscal year.
7.3 In the event Executive is requested to resign, employment is terminated
for any reason by the Company, including termination under Section 5 or 6 or in
the event Executive voluntarily resigns as a result of any of the events set
forth in Section 7.1 above, then, and in any of such events, all of the
Executive's rights under the Company's Stock Option and Incentive Plan and all
other incentive bonus plans shall fully and completely vest upon the date of
such termination and any early termination provisions provided for in such plans
shall not apply to rights or options granted to Executive.
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8. EXPENSES.
8.1 Executive shall be entitled to reimbursement of all reasonable expenses
actually incurred in the course of his employment. Executive shall submit to the
Company a standardized expense report form, provided by the Company, and shall
attach thereto receipts for all expenditures. Expenses shall include housing,
automobile expenses, and travel.
8.2 The Company shall reimburse Executive within fifteen (15) days after
submission by Executive of this expense report.
9. THE COMPANY'S AUTHORITY.
Executive agrees to observe and comply with the reasonable rules and regulations
of the Company as adopted by the Company's Board of Directors, either orally or
in writing, respecting performances of this duties and to carry out and perform
orders, directions, and policies stated by the Board of Directors, to him from
time to time, either orally or in writing.
10. PAID VACATION; SICK LEAVE; INSURANCE.
10.1 Executive shall be entitled to a paid vacation each year equal to not
less than six (6) weeks per year in addition to the paid holidays on which the
Company's offices are closed pursuant to Company policy relating to paid
holidays.
10.2 Executive shall be entitled to reasonable periods of paid sick leave
during the Term of the Agreement in accordance with the Company's policy
regarding such sick leave.
10.3 The Company shall provide Executive, at the Company's expense,
participation in group medical, accident and health insurance, and life
insurance plans of the Company as may be provided by the Company from time to
time to Company executives of comparable status, subject to, and to the extent
that, Executive is eligible under such benefit plans in accordance with their
respective terms.
11. LEGAL DEFENSE; AND INDEMNIFICATION.
The Company acknowledges that the environmental services industry is a highly
litigious industry whereby many regulatory fines, penalties and third-party
suits are directed at the individuals involved in ownership and operations. The
Company agrees to pay all legal fees, judgments, awards, bonds, fines, penalties
and costs related to the defense and outcome whereby Executive was acting in
his corporate capacity. The Company acknowledges that from time to time the
Executive becomes contingently liable for obligations of the Company. The
Company will make whole the Executive in case such contingent obligations become
direct. Also, in the event that Executive leaves the employ of the Company for
any reason, the Company will use its best efforts to remove the Executive from
such liabilities, whether contingent or direct.
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12. MISCELLANEOUS.
12.1 The Company may, from time to time, apply for and take out, in its own
name and at its own expense, life, health, accident, disability or other
insurance upon Executive in any sum or sums that it may deem necessary to
protect its interests, and Executive agrees to aid and cooperate in all
reasonable respects with the Company in procuring any and all such insurance,
including without limitation, submitting to the usual and customary medical
examinations, and by filling out, executing and delivering such applications and
other instruments in writing as may be reasonably required by an insurance
company or companies to which an application or applications for such insurance
may be made by or for the Company.
12.2 This Agreement is a personal contract, and the rights and interests of
Executive hereunder may not be sold, transferred, assigned, pledged or
hypothecated except as otherwise expressly permitted by the provisions of this
Agreement, Executive shall not under any circumstances have any option or right
to require payment hereunder otherwise than in accordance with the terms hereof.
Except as otherwise expressly provided herein, Executive shall not have any
power of anticipation, alienation or assignment of payments contemplated
hereunder, and all rights and benefits of Executive shall be for the sole
personal benefit of Executive, and no other person shall acquire any right,
title or interest hereunder by reason of any sale, assignment, transfer, claim
or judgment or bankruptcy proceedings against Executive; provided, however, that
in the event of Executive's death, Executive's estate, legal representative or
beneficiaries (as the case may be) shall have the right to receive all of the
benefit that accrued to Executive pursuant to, and in accordance with, the terms
of this Agreement.
12.3 The Company shall have the right to assign this Agreement to any
successor of substantially all of its business or assets, and any such
successor and Executive shall be bound by all of the provisions hereof.
13. NOTICES.
All notices, requests, demands and other communications provided for by this
Agreement shall be in writing and (unless otherwise specifically provided
herein) shall be deemed to have been given three (3) days after having been
mailed in any general or branch United States Post office, enclosed in a
registered or certified postpaid envelope, addressed to the parties stated
below or to such changed address as such party may have fixed by notice:
TO THE COMPANY:
COPY TO:
EXECUTIVE: PDG Environmental, Inc.
000 Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Xxxxx X., Xxxxxxxxx, Esq.
Xxxxx & Xxxxxx, P.C.
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000
Xxxx X. Xxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
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14. ENTIRE AGREEMENT.
This Agreement supersedes any and all Agreements, whether oral or written,
between the parties hereto, with respect to the employment of Executive by the
Company and contains all of the covenants and Agreements between the parties
with respect to the rendering of such services in any manner whatsoever. Each
party to this Agreement acknowledges that no representations, inducements,
promises or agreements, orally or otherwise, have been made by any party, or
anyone acting on behalf of any party, which are not embodied herein, and that
no other agreement, statement or promise with respect to such employment not
contained in this Agreement shall be valid or binding. Any modification of this
Agreement will be effective only if it is writing and signed by the parties
hereto.
15. PARTIAL INVALIDITY.
If any provision in this Agreement is held by a court of competent jurisdiction
to be invalid, void, or unenforceable, the remaining provision shall
nevertheless continue in full force and effect without being impaired or
invalidated in any way.
16. ATTORNEY FEES.
Except with respect to paragraphs 5.3 and 5.4 which issues are reserved for the
court, any dispute regarding the negotiations leading up to the execution of
this Release and/or the interpretation or application of this Agreement or the
alleged breach hereof, or any act which allegedly has, or would violate any
provision of this Agreement must be submitted to arbitration before a neutral
arbitrator. The arbitration shall be conducted in accordance with the rules of
American Arbitration Association. A written demand of arbitration pursuant to
Section 638 of the Code of Civil Procedure must be made within sixty (60) days
of the alleged breach. The results of arbitration will be the exclusive, final
and binding remedy for such claim or dispute.
17. GOVERNING LAW.
This Agreement will be governed by and construed in accordance with the laws of
the Commonwealth of Pennsylvania.
18. BINDING NATURE.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective representatives, heirs, successors and assigns.
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19. WAIVER.
No waiver of any of the provisions of this Agreement shall be deemed, or shall
constitute a waiver of any other provision, whether or not similar, nor shall
any waiver constitute a continuing waiver. No waiver shall be binding unless
executed in writing by the party making the waiver.
20. CORPORATE APPROVALS.
The Company represents and warrants that the execution of this Agreement by its
corporate officer named below has been duly authorized by the Board of Directors
of the Company, is not in conflict with any Bylaw or other agreement and will
be a binding obligation of the Company, enforceable in accordance with its
terms.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date above written.
THE COMPANY:
PDG ENVIRONMENTAL, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Member of Board of Directors and
Compensation Committee Chairman
EXECUTIVE:
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
