EXHIBIT 10.29
EMPLOYMENT AGREEMENT
This Employment Agreement is made and entered into by and between
Environmental Solutions Worldwide, Inc. (the "Company") and Xxxxx X. Xxxxxxx
("Executive") as of January 1, 2007 (the "Effective Date").
WHEREAS, the EMPLOYER is desirous of employing Executive, and Executive
wishes to be employed by EMPLOYER in accordance with the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND
PROMISES AND OTHER GOOD AND VALUABLE CONSIDERATION, THE
RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED, IT IS MUTUALLY AGREED
AS FOLLOWS:
1. POSITION AND DUTIES: Executive shall be employed by the Company as its Chief
Executive Officer ("CEO"), and President reporting only to the Company's Board
of Directors. As its CEO, and President, Executive agrees to devote the
necessary business time, energy and skill to his duties at the Company, and will
be permitted engage in outside consulting provided said consulting services do
not interfere with Executive's obligations to Company under the terms of this
Agreement. Executive agrees to advise the Board of any outside Consulting
Services, and further agrees that the Company's Board of Directors shall make
the sole determination of whether a proposed consulting activity would interfere
with Executive's obligations under this Agreement. These duties of Executive
under this Agreement shall include all those duties customarily performed by a
CEO and President as well as providing advice and consultation on general
corporate matters, particularly related to sales and product development, and
other projects as may be assigned by the Company's Board of Directors on an as
needed basis. During the term of Executive's employment, Executive shall be
permitted to serve on boards of directors of for-profit or not-for-profit
entities provided such service does not adversely affect the performance of
Executive's duties to the Company under this Agreement, or are in conflict with
the interests of the Company.
In addition to Executive's service as CEO and President of the Company,
Executive shall be nominated to stand for re-election to the Board of Directors
at the next scheduled shareholders meeting of the Company. As a member of the
Company's Board, Executive shall continue to be subject to the provisions of the
Company's bylaws and all applicable general corporation laws relative to his
position on the Board. In addition to the Company's bylaws, as a member of the
Board, Executive and his designee shall also be subject to the statement of
powers, both specific and general, set forth in the Company's Articles of
Incorporation.
2. TERM OF EMPLOYMENT: This Agreement shall remain in effect for a period of
three years from the Effective Date, and thereafter will automatically renew for
successive one year periods unless either party provides ninety days' prior
notice of termination. In the event the Company elects to terminate the
Agreement, such termination shall be considered to be an Involuntary
Termination, and Executive shall be provided benefits as provided in this
Agreement. Upon the termination of Executive's employment for any reason,
neither Executive nor Company shall have any further obligation or liability
under this Agreement to the other, except as set forth below.
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3. COMPENSATION: Executive shall be compensated by the Company for his services
as follows:
(A) BASE SALARY: As CEO and President, Executive shall be paid a monthly
Base Salary of US $20,000.00 per month (US $240,000.00 on an annualized basis),
subject to applicable withholding, in accordance with the Company's normal
payroll procedures. Executive's salary shall be reviewed on at least an annual
basis and may be adjusted as appropriate, but in no event shall it be less. In
the event of such an adjustment, that amount shall become Executive's Base
Salary. Furthermore, during the term of this Agreement, in no event shall
Executive's compensation be less than any other officer or employee of the
Company or any subsidiary.
(B) BENEFITS: Executive shall have the right, on the same basis as other
senior executives of the Company, to participate in and to receive benefits
under any of the Company's employee benefit plans, as such plans may be modified
from time to time, and provided that in no event shall Executive receive less
than (4) four weeks paid vacation per annum and (10) ten paid sick/personal days
per annum. Executive will also be entitled to a monthly vehicle allowance of US
$1,000.00.
(C) STOCK OPTIONS: Executive shall receive 600,000 stock options (the
"Options") to purchase 600,000 shares of the Company's common stock, par value
$0.001 (the "Common Stock"). The exercise price for the Options (subject to
adjustment as set forth in Section 3(d) herein) shall be the average of the
closing price of the Company's Common Stock for the twenty (20) days immediately
preceding the effective date of this Agreement. All Options vest as of the
effective date of this Agreement and are exercisable for a period of five years
from the effective date of this Agreement. Additionally, the Options are subject
to a cashless exercise provision whereby payment upon exercise of the Options
may be made at the option of the Executive either in (i) cash, wire transfer or
by certified or official bank check payable to the order of the Company equal to
the applicable aggregate exercise price, (ii) by delivery of Common Stock
issuable upon exercise of the Options in accordance with Section (A) below
("Cashless Exercise") or (iii) by a combination of any of the foregoing methods
(in accord with Section (A) below), for the number of shares of Common Stock
specified in such form (as such exercise number shall be adjusted to reflect any
adjustment in the total number of shares of Common Stock issuable to the
Executive per the terms of the Options) and the Executive shall thereupon be
entitled to receive the number of duly authorized, validly issued, fully paid
and nonassessable shares of Common Stock determined as provided herein.
(A) If the Fair Market Value of one share of Common Stock
is greater than the exercise price (at the date of
calculation as set forth below) and no Registration
Statement relating to the shares of Common Stock
underlying the Options is in effect, in lieu of exercising
the Options for cash, the Executive may elect to receive
shares equal to the value (as determined below) of the
Option (or the portion thereof being cancelled) by
surrender of the Option at the principal office of the
Company together with the properly endorsed notice of
cashless exercise in which event the Company shall issue
to the Executive a number of shares of Common Stock
computed using the following formula:
X=Y (A-B)
---------
A
Where X= the number of shares of
Common Stock to be issued to the Executive
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Y= the number of shares of Common Stock
purchasable under the Option or, if only a
portion of the Option is being exercised, the
portion of the Option being exercised (at the
date of such calculation)
A= the Fair Market Value of one share of the
Company's Common Stock (at the date of such
calculation)
B= Exercise Price (as adjusted to the date
of such calculation)
The Company grants Executive cost free piggyback registration rights for the
shares underlying the Options and will use its best efforts to first include the
options in an existing approved option benefits plan and register the underlying
shares in a Form S-8 Registration statement, or thereafter in the next
registration statement filed by the Company.
(D) ADJUSTMENT: In the event of any merger, reorganization, consolidation,
sale of substantially all assets, recapitalization, reclassification, Common
Stock dividend (in excess of 5% thereon), Common Stock split or reverse split,
spin-off, split-up, split-off, distribution of assets or other change in
corporate structure affecting the Common Stock after the date hereof, an
appropriate substitution or adjustment shall be made in the number of shares
subject to the Option and to the exercise price; provided, however, that such
adjustment shall not increase the aggregate value of the Option, no fractional
shares shall be issued, and the aggregate exercise price shall be appropriately
reduced on account of any fractional shares. Without limiting the foregoing, in
case of any consolidation or merger of the Company with or into another
corporation (other than a merger with a subsidiary in which the Company is the
continuing corporation and which does not result in any reclassification,
capital reorganization or other change of the outstanding Shares issuable upon
exercise of the Option) or in case of the sale, transfer or other disposition of
all or substantially all of the assets of the Company, then the Executive shall
be entitled to receive upon exercise of the Option such number of shares of
capital stock or other securities or property upon, or as a result of, such
transaction that the Executive would have been entitled to receive had the
Option been exercised immediately prior to such transaction.
(E) EXPENSES: Company shall reimburse Executive for reasonable travel,
lodging, entertainment and meal expenses incurred in connection the performance
of services within this Agreement.
4. EFFECT OF TERMINATION OF EMPLOYMENT:
(A) VOLUNTARY TERMINATION, DUE TO DEATH OR DISABILITY: In the event of
Executive's voluntary termination from employment with the Company, Executive
shall be entitled to no compensation or benefits from the Company other than
those earned under Section 3 through the date of his termination and, in the
case of each stock option, restricted stock award or other Company stock-based
award granted to Executive, the extent to which such awards are vested through
the date of his termination. In the event that Executive's employment terminates
as a result of his death or disability, Executive shall be entitled to a
pro-rata share of all compensation and benefits earned under Section 3 through
the date of termination.
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(B) TERMINATION FOR CAUSE: If Executive's employment is terminated by the
Company for Cause, Executive shall be entitled to no compensation or benefits
from the Company other than those earned under Section 3 through the date of his
termination and, in the case of each stock option, restricted stock award or
other Company stock-based award granted to Executive, the extent to which such
awards are vested through the date of his termination. In the event that the
Company terminates Executive's employment for Cause, the Company shall provide
written notice to Executive of that fact prior to, or concurrently with, the
termination of employment. Failure to provide written notice that the Company
contends that the termination is for Cause shall constitute a waiver of any
contention that the termination was for Cause, and the termination shall be
irrebuttably presumed to be an Involuntary Termination.
(C) INVOLUNTARY TERMINATION DURING CHANGE IN CONTROL PERIOD: If
Executive's employment with the Company terminates as a result of a Change in
Control Period Involuntary Termination, then, in addition to any other benefits
described in this Agreement, Executive shall receive the following:
(i) all compensation and benefits earned under Section 3 through the
date of Executive's termination of employment;
(ii) a lump sum payment equivalent to the remaining Base Salary (as
it was in effect immediately prior to the Change in Control) due Executive from
the date of Involuntary Termination to the end of the term of this Agreement or
six (6) months Base Salary, whichever is the greater; and
(iii) reimbursement for the cost of medical, life, disability
insurance coverage at a level equivalent to that provided by the Company for a
period expiring upon the earlier of: (a) one year; or (b) the time Executive
begins alternative employment wherein said insurance coverage is available and
offered to Executive. It shall be the obligation of Executive to inform the
Company that new employment has been obtained.
Unless otherwise agreed to by Executive at the time of Involuntary Termination,
the amount payable to Executive under subsections (i) and (ii), above, shall be
paid to Executive in a lump sum within thirty (30) days following Executive's
termination of employment. The amounts payable under subsection (iii) shall be
paid monthly during the reimbursement period.
(D) TERMINATION WITHOUT CAUSE IN THE ABSENCE OF CHANGE IN CONTROL: In the
event that Executive's employment terminates as a result of a Non Change in
Control Period Involuntary Termination, then Executive shall receive the
following benefits:
(i) all compensation and benefits earned under Section 3 through the
date of the Executive's termination of employment;
(ii) a lump sum payment equivalent to the remaining Base Salary (as
it was in effect immediately prior to the Change in Control) due Executive to
the end of the term of this Agreement or six (6) months Base Salary, whichever
is the greater; and
(iii) reimbursement for the cost of medical, life and disability
insurance coverage at a level equivalent to that provided by the Company for a
period of the earlier of: (a) one year; or (b) the time Executive begins
alternative employment wherein said insurance coverage is available and offered
to Executive. It shall be the obligation of Executive to inform the Company that
new employment has been obtained.
Unless otherwise agreed to by Executive, the amount payable to Executive under
subsections (i) and (ii) above shall be paid to Executive in a lump sum within
thirty (30) days following Executive's termination of employment. The amounts
payable under subsection (iii) shall be paid monthly during the reimbursement
period.
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(E) RESIGNATION WITH GOOD REASON DURING CHANGE IN CONTROL PERIOD: If
Executive resigns his employment with the Company as a result of a Change in
Control Period Good Reason, then, in addition to any other benefits described in
this Agreement, Executive shall receive the following.
(i) all compensation and benefits earned under Section 3 through the
date of the Executive's termination of employment;
(ii) a lump sum payment equivalent to the remaining Base Salary (as
it was in effect immediately prior to the Change in Control) due Executive from
the date of Involuntary Termination to the end of the term of this Agreement or
six (6) months Base Salary, whichever is the greater; and
(iii) reimbursement for the cost of medical, life and disability
insurance coverage at a level equivalent to that provided by the Company for a
period of the earlier of: (a) one year; or (b) the time Executive begins
alternative employment wherein said insurance coverage is available and offered
to Executive. It shall be the obligation of Executive to inform the Company that
new employment has been obtained.
Unless otherwise agreed to by Executive, the amount payable to Executive under
subsections (i) and (ii) above shall be paid to Executive in a lump sum within
thirty (30) days following the Executive's termination of employment. The
amounts payable under subsection (iii) shall be paid monthly during the
reimbursement period.
(F) RESIGNATION WITH GOOD REASON IN THE ABSENCE OF CHANGE IN CONTROL: If
Executive resigns his employment with the Company as a result of a Non Change in
Control Period Good Reason, then, in addition to any other benefits described in
this Agreement, Executive shall receive the following.
(i) all compensation and benefits earned under Section 3 through the
date of the Executive's termination of employment;
(ii) a lump sum payment equivalent to the remaining Base Salary (as
it was in effect immediately prior to the Change in Control) due Executive from
the date of Involuntary Termination to the end of the term of this Agreement or
six (6) months Base Salary, whichever is the greater; and
(iii) reimbursement for the cost of medical, life and disability
insurance coverage at a level equivalent to that provided by the Company for a
period of the earlier of: (a) one year; or (b) the time Executive begins
alternative employment wherein said insurance coverage is available and offered
to Executive. It shall be the obligation of Executive to inform the Company that
new employment has been obtained.
Unless otherwise agreed to by Executive, the amount payable to Executive under
subsections (i) and (ii) above shall be paid to Executive in a lump sum within
thirty (30) days following the Executive's termination of employment. The
amounts payable under subsection (iii) shall be paid monthly during the
reimbursement period.
(G) RESIGNATION FROM POSITIONS: In the event that Executive's employment
with the Company is terminated for any reason, on the effective date of the
termination Executive shall simultaneously voluntarily resign from each position
he holds on the Board and/or the Board of Directors of any of the Company's
affiliated entities and any position Executive holds as an officer of the
Company or any of the Company's affiliated entities.
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5. CERTAIN DEFINITIONS: For the purpose of this Agreement, the following
capitalized terms shall have the meanings set forth below:
(a) "Cause" shall mean any of the following occurring on or after the date
of this Agreement :
(i) Executive's theft, dishonesty, breach of fiduciary duty for
personal profit, or falsification of any employment or Company record;
(ii) Executive's willful violation of any law, rule, or regulation
(other than traffic violations, misdemeanors or similar offenses) or final
cease-and-desist order, in each case that involves moral turpitude;
(iii) Executive's intentional failure to perform stated duties,
provided Executive has not cured such failure following 20 days prior written
notice of such failure;
(iv) Executive's improper disclosure of the Company's confidential
or proprietary information;
(v) any material breach by Executive of the Company's Code of
Professional Conduct, which breach shall be deemed "material" if it results from
an intentional act by Executive and has a material detrimental effect on the
Company's reputation or business; or
(vi) any material breach by Executive of this Agreement, which
breach, if curable, is not cured within thirty (30) days following written
notice of such breach from the Company.
(b) "Change in Control" shall mean the occurrence of any of the following
events:
(i) (X) any "person" (as such term is used in Section 13 (d) and 14
(d) of the Securities Exchange Act of 1934, as amended) (other than Executive)
becomes the "beneficial owner" (as defined in Rule 13d-3 under said Act),
directly or indirectly, of securities of the Company representing more than
fifty percent (50%) of the total combined voting power represented by the
Company's then outstanding voting securities other than the acquisition of the
Company's Common Stock by a Company-sponsored employee benefit plan or through
the issuance of shares sold directly by the Company to a single acquirer, or (Y)
any "person" (as such term is used in Section 13 (d) and 14 (d) of the
Securities Exchange Act of 1934, as amended) becomes the "beneficial owner" (as
defined in Rule 13d-3 under said Act) directly or indirectly, of securities of
the Company representing less than fifty percent (50%) of the total combined
voting power represented by the Company's then outstanding voting securities,
but in connection with the person's acquisition of securities the person
acquires the right to terminate the employment of all or a portion of the
Company's management team;
(ii) the Company is party to a merger or consolidation which results
in the holders of the voting securities of the Company outstanding immediately
prior thereto failing to retain immediately after such merger or consolidation
direct or indirect beneficial ownership of more than fifty percent (50%) of the
total combined voting power of the securities entitled to vote generally in the
election of directors of the Company or the surviving entity outstanding
immediately after such merger of consolidation.
(iii) effectiveness of an agreement for the sale, lease or
disposition by the Company of all or substantially all of the Company's assets;
or
(iv) a liquidation or dissolution of the Company.
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(c) "Change in Control Period" shall mean the period commencing on the
date sixty (60) days prior to the date of consummation of the Change of Control
and ending sixty (60) days following of same date of consummation of the Change
of Control.
(d) "Change in Control Period Good Reason" shall mean Executive's
resignation for any of the following conditions, first occurring during a Change
in Control Period and occurring without Executive's written consent:
(i) a decrease in Executive's Base Salary and/or a decrease in
employee benefits other than as part of any across-the-board reduction applying
to all senior executives and not resulting in those senior executives receiving
lesser benefits than similarly situated executives of an acquirer;
(ii) a material, adverse change in Executive's title, authority,
responsibilities, as measured against Executive's title, authority,
responsibilities or duties immediately prior to such change.
(iii) a change in the Executive's ability to maintain his principal
workplace at multiple or satellite offices;
(iv) any material breach by the Company of any provision of this
Agreement, which breach is not cured within thirty (30) days following written
notice of such breach from Executive;
(v) any failure of the Company to obtain the assumption of this
Agreement by any of the Company's successors or assigns by purchase, merger,
consolidation, sale of assets or otherwise.
(vi) any purported termination of Executive's employment for
"material breach of contract" which is purportedly effected without providing
the "cure" period, if applicable, described in Section 5 (a)(iii) or (vi),
above.
The effective date of any Change in Control Period Involuntary Termination shall
be the date of notification to the Executive of the termination of employment by
the Company or the date of notification to the Company of the resignation from
employment by the Executive for Change in Control Period Good Reason.
(e) "Non Change in Control Period Good Reason" shall mean the Executive's
resignation within six months of any of the following conditions first occurring
outside of a Change in Control Period and occurring without Executive's written
consent:
(i) a decrease in Executive's total cash compensation of greater
than ten percent (10%);
(ii) a material, adverse change in Executive's title, authority,
responsibilities or duties, as measured against Executive's title, authority,
responsibilities or duties immediately prior to such change;
(iii) any material breach by the Company of a provision of this
Agreement, which breach is not cured within thirty (30) days following written
notice of such breach from Executive;
(iv) any change in the Executive's ability to maintain his principal
workplace at multiple or satellite offices;
(v) any purported termination of Executive's employment for
"material breach of contract" which is purportedly effected without providing
the "cure" period, if applicable, described in Section 5 (a) (iii) or (vi),
above.
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The effective date of any Non Change in Control Period Involuntary Termination
shall be the date of notification to the Executive of the termination of
employment by the Company or the date of notification to the Company of the
resignation from employment by the Executive for Non Change in Control Period
Good Reason.
(f) "Incumbent Directors" shall mean members of the Board who either (a)
are members of the Board as of the date hereof, or (b) are elected, or nominated
for election, to the Board with the affirmative vote of at least a majority of
the Incumbent Directors at the time of such election or nomination (but shall
not include an individual whose election or nomination is in connection with an
actual or threatened proxy contest relating to the election of members of the
Board).
(g) "Change in Control Period Involuntary Termination" shall mean during a
Change in Control Period the termination by the Company of Executive's
employment with the Company for any reason other than Cause, Executive's death
or Executive's Disability; or
(h) "Non Change in Control Period Involuntary Termination" shall mean
outside a Change in Control Period the termination by the Company of Executive's
employment with the Company for any reason other than Cause, Executive's death
or Executive's disability.
6. DISPUTE RESOLUTION: In the event of any dispute or claim relating to or
arising out of this Agreement (including, but not limited to, any claims of
breach of contract, wrongful termination or age, sex, race or other
discrimination), Executive and the Company agree that all such disputes shall be
fully addressed and finally resolved by (1) binding arbitration conducted by the
American Arbitration Association in New York City, in the State of New York in
accordance with its National Employment Dispute Resolution rules or (2) in any
federal or state court located in New York, New York. In connection with any
such arbitration, the Company shall bear all costs not otherwise born by a
plaintiff in a court proceeding. The Company agrees that any decisions of the
Arbitration Panel will be binding and enforceable in any state that the Company
conducts the operation of its business.
7. ATTORNEYS' FEES: The prevailing party shall be entitled to recover from the
losing party its attorneys' fees and costs incurred in any action brought to
enforce any right arising out of this Agreement.
8. RESTRICTIVE COVENANTS:
(A) NONDISCLOSURE. During the Term and following termination of the
Executive's employment with the Company, Executive shall not divulge,
communicate, use to the detriment of the Company or for the benefit of any other
person or persons, or misuse in any way, any Confidential Information (as
hereinafter defined) pertaining to the business of the Company. Any Confidential
Information or data now or hereafter acquired by the Executive with respect to
the business of the Company (which shall include, but not be limited to,
confidential information concerning the Company's financial condition,
prospects, technology, customers, suppliers, methods of doing business and
promotion of the Company's products and services) shall be deemed a valuable,
special and unique asset of the Company that is received by the Executive in
confidence and as a fiduciary. For purposes of this Agreement "Confidential
Information" means information disclosed to the Executive or known by the
Executive as a consequence of or through his employment by the Company
(including information conceived, originated, discovered or developed by the
Executive) prior to or after the date hereof and not generally known or in the
public domain, about the Company or its business. Notwithstanding the foregoing,
nothing herein shall be deemed to restrict the Executive from disclosing
Confidential Information to the extent required by law or by any court provided
Executive gives notice to Company of said court order or subpoena as the case
may be.
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(B) NON-COMPETITION. The Executive shall not, while employed by the
Company and for a period of one (1) year following the Date of Termination for
Cause, or Resignation without Good Reason, engage or participate, directly or
indirectly (whether as an officer, director, employee, partner, consultant, or
otherwise), in any business that manufactures, markets or sells products that
directly competes with any product of the Company that is significant to the
Company's business based on sales and/or profitability of any such product as of
the date of termination of Executive's employment with the Company. Nothing
herein shall prohibit Executive from being a passive owner of less than 5 %
stock of any entity directly engaged in a competing business.
(C) PROPERTY RIGHTS; ASSIGNMENT OF INVENTIONS. With respect to
information, inventions and discoveries or any interest in any copyright and/or
other property right developed, made or conceived of by Executive, either alone
or with others, during his employment by Employer arising out of such employment
or pertinent to any field of business or research in which, during such
employment, Employer is engaged or (if such is known to or ascertainable by
Executive) is considering engaging, Executive hereby agrees:
(i) that all such information, inventions and discoveries or any
interest in any copyright and/or other property right, whether or not patented
or patentable, shall be assigned to and/or and remain the exclusive property of
the Employer;
(ii) to disclose promptly to an authorized representative of
Employer all such information, inventions and discoveries or any copyright
and/or other property right and all information in Executive's possession as to
possible applications and uses thereof;
(iii) not to file any patent application relating to any such
invention or discovery except with the prior written consent of an authorized
officer of Employer (other than Executive);
(iv) that Executive hereby waives and releases any and all rights
Executive may have in and to such information, inventions and discoveries, and
hereby assigns to Executive and/or its nominees all of Executive's right, title
and interest in them, and all Executive's right, title and interest in any
patent, patent application, copyright or other property right based thereon.
Executive hereby irrevocably designates and appoints the Company and each of its
duly authorized officers and agents as his agent and attorney-in-fact to act for
him and on his behalf and in his stead to execute and file any document and to
do all other lawfully permitted acts to further the prosecution, issuance and
enforcement of any such patent, patent application, copyright or other property
right with the same force and effect as if executed and delivered by Executive;
and
(v) at the request of the Company, and without expense to Executive,
to execute such documents and perform such other acts as Employer deems
necessary or appropriate, for Employer to obtain patents on such inventions in a
jurisdiction or jurisdictions designated by Employer, and to assign to Employer
or its designee such inventions and any and all patent applications and patents
relating thereto.
9. GENERAL:
(A) SUCCESSORS AND ASSIGNS: The provisions of this Agreement shall inure
to the benefit of and be binding upon the Company, Executive and each and all of
their respective heirs, legal representatives, successors and assigns. The
duties, responsibilities and obligations of Executive under this Agreement shall
be personal and not assignable or delegable by Executive in any manner
whatsoever to any person, corporation, partnership, firm, company, joint venture
or other entity. Executive may not assign, transfer, convey, mortgage, pledge or
in any other manner encumber the compensation or other benefits to be received
by him or any rights, which he may have pursuant to the terms and provisions of
this Agreement.
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(B) AMENDMENTS; WAIVERS: No provision of this Agreement shall be modified,
waived or discharged unless the modification, waiver or discharge is agreed to
in writing and signed by Executive and by an authorized officer of the Company.
No waiver by either party of any breach of, or of compliance with, any condition
or provision of this Agreement by the other party shall be considered a waiver
of any other condition or provision or of the same condition or provision at
another time.
(C) NOTICES: Any notices to be given pursuant to this Agreement by either
party may be effected by personal delivery or by overnight delivery with receipt
requested. Mailed notices shall be addressed to the parties at the addresses
stated below, but each party may change its or his/her address by written notice
to the other in accordance with this subsection (c) Mailed notices to Executive
shall be addressed as follows:
Xxxxx X. Xxxxxxx
With a copy to: [ ]
Mailed notices to the Company shall be addressed as follows:
Chief Financial or Accounting Officer
Environmental Solutions Worldwide, Inc.
000 Xxxxxx Xxxxxxxx
Xxxxxxx Xxxxxxx X0X 0X0
Xxxxxx
With a copy to:
Xxxxxxx, Xxxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
(D) ENTIRE AGREEMENT: This Agreement constitutes the entire employment
agreement between Executive and the Company regarding the terms and conditions
of his employment, with the exception of (a) the agreement described in Section
7 and (b) any stock option, restricted stock or other Company stock-based award
agreements between Executive and the Company to the extent not modified by this
Agreement. This Agreement (including the documents described in (a) and (b)
herein) supersedes all prior negotiations, representations or agreements between
Executive and the Company, whether written or oral, concerning Executive's
employment by the Company.
(E) WITHHOLDING TAXES: All payments made under this Agreement shall be
subject to reduction to reflect taxes required to be withheld by law.
(F) COUNTERPARTS: This Agreement may be executed by the Company and
Executive in counterparts, each of which shall be deemed an original and which
together shall constitute one instrument.
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(G) HEADINGS: Each and all of the headings contained in this Agreement are
for reference purposes only and shall not in any manner whatsoever affect the
construction or interpretation of this Agreement or be deemed a part of this
Agreement for any purpose whatsoever.
(H) SAVINGS PROVISION: To the extent that any provision of this Agreement
or any paragraph, term, provision, sentence, phrase, clause or word of this
Agreement shall be found to be illegal or unenforceable for any reason, such
paragraph, term, provision, sentence, phrase, clause or word shall be modified
or deleted in such a manner as to make this Agreement, as so modified, legal and
enforceable under applicable laws. The remainder of this Agreement shall
continue in full force and effect.
(I) CONSTRUCTION: The language of this Agreement and of each and every
paragraph, term and provision of this Agreement shall, in all cases, for any and
all purposes, and in any and all circumstances whatsoever be construed as a
whole, according to its fair meaning, not strictly for or against Executive or
the Company, and with no regard whatsoever to the identity or status of any
person or persons who drafted all or any portion of this Agreement.
(J) FURTHER ASSURANCES: From time to time, at the Company's request and
without further consideration, Executive shall execute and deliver such
additional documents and take all such further action as reasonably requested by
the Company to be necessary or desirable to make effective, in the most
expeditious manner possible, the terms of this Agreement and to provide adequate
assurance of Executive's due performance hereunder.
(K) GOVERNING LAW: Executive and the Company agree that this Agreement
shall be interpreted in accordance with and governed by the laws of the State of
New York.
(L) BOARD APPROVAL: The Company warrants to Executive that the Board of
Directors of the Company has ratified and approved the within Agreement, and
that the Company will cause the appropriate disclosure filing to be made with
the Securities and Exchange Commission in a timely manner.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year written below.
February [ ], 2007
---------------------------------
Xxxxx X. Xxxxxxx
February [ ], 2007
Environmental Solutions Worldwide, Inc.
By: _____________________________
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