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EXHIBIT 99.5
EMPLOYMENT AGREEMENT
AGREEMENT, made as of this 1st day of May 2000, by and between Probex
Fluids Recovery, Inc., a Delaware corporation (the "Company") and a wholly-owned
subsidiary of Probex Corp., a Colorado corporation ("Probex"), and Xxxxxxx Xxxxx
Xxxxx ("Employee").
W I T N E S S E T H:
WHEREAS, the Company is engaged in the business of collecting,
purchasing, selling and delivering used petroleum products;
WHEREAS, the Company desires to employ Employee as Vice President of
Sales of the Company in connection with the conduct of the business acquired
from Petroleum Products, Inc., an Ohio corporation ("PPI"), and Intercoastal
Trading Company, Inc., an Ohio corporation ("Intercoastal"), and Employee
desires to accept such employment on the terms and conditions herein set forth;
and
WHEREAS, contemporaneously with, and as a condition to, the execution
of this Agreement, the Company, PPI and Intercoastal are consummating Asset
Purchase Agreements (the "Purchase Agreements"), pursuant to which the Company
is purchasing substantially all of the assets of PPI and Intercoastal.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements hereinafter set forth, the parties hereto, intending
legally to be bound, hereby agree as follows:
1. Employment. The Company hereby employs Employee as Vice President of
Sales, and Employee hereby accepts such employment, upon the terms and
conditions hereinafter set forth.
2. Term. The term of employment of Employee under this Agreement shall
commence on the date hereof, and shall continue for a period of five years,
unless terminated in accordance with the provisions of Paragraphs 5 or 6 hereof
(the "Term"), and the Term shall not be extended or renewed except by a writing
signed by both an authorized executive officer of the Company and Employee.
3. Duties.
(a) During the Term, Employee shall perform such duties as are
designated by the Company's Board of Directors and such other duties as may from
time to time be assigned to him by the Board of Directors or Chief Executive
Officer, or any designee of either, of the Company.
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(b) During the Term, Employee shall use his best efforts to carry
out his duties and responsibilities hereunder and devote his entire working time
to the business and affairs of the Company and shall not, in any advisory or
other capacity, work for any other individual, firm or corporation without first
having obtained the written consent of an executive officer of the Company.
(c) During the Term, the principal place of employment of Employee
shall be the Company's facility in Westerville, Ohio, although it is understood
that in connection with his duties under this agreement, Employee may be
required to travel to and perform services at other locations.
(d) Employee represents and warrants to the Company that he is not
subject to, or a party to, any employment agreement, non-competition covenant,
non-disclosure agreement or other agreement, covenant, understanding or
restriction which would prohibit Employee from executing this Agreement and
performing fully his duties and responsibilities hereunder, or which would in
any manner, directly or indirectly, limit or affect the duties and
responsibilities which may now or in the future be assigned to Employee by the
Company.
4. Compensation. As compensation for the services to be rendered
hereunder by Employee, the Company agrees to pay or provide to Employee:
(a) Salary. A base salary for such services at the annual rate of
$100,000.00, payable in semi-monthly installments. This rate of compensation
shall be reviewed by the Board of Directors at least once per fiscal year in
connection with annual merit and/or cost of living adjustments, at the Board of
Directors' sole discretion.
(b) Bonus. Employee shall receive an annual bonus to be agreed upon
in good faith by the Employee and the Company within 30 days hereof.
(c) Benefits, Etc. During the Term, Employee will be entitled to
participate in all medical, hospital, major medical, life insurance and
statutory disability coverage plans, all pension, retirement, and profit-sharing
plans, option and incentive plans and all other employee benefit plans, in each
case, which the Company or Probex may from time to time make generally available
to other nonexecutive employees of the Company or Probex, on the same basis as
such plan or plans and benefits are made generally available to such individuals
(subject, however, to the provisions of such plans).
(d) Other Benefits. Nothing contained herein shall be deemed to
limit or affect the right of Employee to receive additional bonuses or other
forms of additional compensation or to participate in any retirement,
disability, profit sharing, stock option, cash or stock bonus or other plan or
arrangement, or in any other benefits now or hereafter provided by the Company
or Probex for its employees at the sole discretion of the Board of Directors.
(e) Expense. It is contemplated that, in connection with his
employment hereunder, Employee may be required to incur reasonable business,
entertainment and travel expenses. The Company agrees to reimburse Employee in
full for all such reasonable and necessary business, entertainment and travel
expenses incurred or expended by him in connection with the performance of his
duties hereunder; provided Employee submits to the Company vouchers or
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expense statements satisfactorily evidencing such expenses as may be reasonably
required by the Company and such expenses are in accordance with any corporate
policy with respect thereto. Such expenses shall be reimbursed 30 days after
submission of any required documentation therefor.
(f) Vacation. Employee will be entitled to paid vacation time in
accordance with the Company's vacation policy available to other employees. Such
vacation may be taken at such times as is reasonably consistent with proper
performance by Employee of his duties and responsibilities hereunder.
5. Death and Disability.
(a) The Term of employment of Employee shall terminate forthwith in
the event of the death of Employee, or, at the option of the Company, in the
event of physical or mental incapacity or disability which renders him unable,
with reasonable accommodation, to perform the services required of him under
this Agreement ("Disability") for a period of 90 consecutive days or for 180
days or more during any period of 12 consecutive months. Such Disability shall
be subject to verification by a qualified physician if requested by Employee.
During any period of Disability prior to termination, Employee shall continue to
be compensated as provided herein (less any payments due Employee under
disability benefit programs paid for by the Company including Social Security
disability, worker's compensation and disability or retirement benefits).
(b) In the event of the death of Employee during the Term or in the
event of the termination of this Agreement by the Company because of the
Disability of Employee, Employee shall be entitled to receive the compensation
specified in Paragraphs 4(a), 4(b) and 4(f) earned by Employee through the date
of death or termination, and shall be entitled to receive the remaining
restricted stock held in escrow and note payments pursuant to the Purchase
Agreements. The Company thereafter shall have no further obligations under this
Agreement.
6. Termination of Employment.
(a) The Company may terminate this Agreement "for cause" immediately
upon written notice to Employee. Termination for cause shall mean discharge by
the Company on the following grounds:
(i) Employee's conviction in a court of law of any felony,
which conviction makes him unfit for continuing
employment, prevents him from effective management of the
Company or materially adversely affects the reputation or
business activities of the Company;
(ii) Dishonesty, willful misconduct or moral turpitude, which
materially adversely affects the reputation or business
activities of the Company and which continues after
written notice thereof to Employee;
(iii) Substance abuse, including abuse of alcohol or use of
illegal narcotics, and other drugs or substances, for
which Employee fails to undertake
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and maintain treatment after 15 days after requested by
the Company, or a material misappropriation of funds;
(iv) Employee's continuing material failure or refusal to
perform his duties in accordance with the terms of this
Agreement or to carry out in all material respects the
lawful directives of the Board of Directors, unless
otherwise delegated; provided that discharge pursuant to
this subparagraph (iv) shall constitute discharge for
cause only if Employee has first received written notice
from the President or any other officer designated by the
Board of Directors of the Company stating with specificity
the nature of such failure or refusal and Employee fails
to cure such failure or refusal to the reasonable
satisfaction of the Company within 15 days from the date
of such notice; or
(v) Employee's (i) breach of the representations and
warranties to the Company contained in Paragraph 3(d)
hereof, (iii) breach of the Non-Disclosure, Assignment of
Developments, Non-Solicitation and Non-Competition
Agreement entered into in connection with this Agreement;
or (iii) material breach of any of the representations and
warranties contained in the Purchase Agreements that
causes the Company to incur any material losses, damages,
liabilities, obligations or costs.
Upon such termination for cause, Employee shall lose all right, title
and interest in and to all payments required to be made in accordance with the
provisions of this Agreement, and the Company shall have no further obligation
to Employee hereunder, except for compensation pursuant to Paragraphs 4(a) and
4(f) to which Employee is entitled through the date of termination, bonus
compensation to which Employee is entitled for and in respect of the preceding
fiscal year if not theretofore paid, and any benefits referred to in Paragraph 4
to which Employee has a vested right under the terms and conditions of the plan
or program pursuant to which such benefits were granted. Further, such
termination shall constitute a breach of the Purchase Agreement as set forth in
Paragraph 8.
(b) The Company may terminate the Employee other than for cause at
any time upon one month's prior written notice to Employee. Termination of the
Employee "other than for cause" shall include, without limitation, a "change in
control" of the Company, which shall be deemed to have occurred if (i) any
"person" (as such term is used in Sections 13(d) and 14(d)(2) of the Securities
Exchange Act of 1934, as amended), other than a stockholder of the Company that
owns in excess of 5% of the outstanding voting securities of the Company as of
the date of this Agreement, becomes the beneficial owner (as such term is used
in Section 13(d) of the Securities Exchange Act of 1934, as amended) of more
than 50% of the outstanding voting securities of the Company, and (ii) within 30
days of the change of control the then current Chief Executive Officer of the
Company terminates employment with the Company. In the event of termination of
Employee for any reason other than for cause, Employee shall be entitled to
receive: (i) the compensation specified in Paragraphs 4(a), 4(b) and 4(f) earned
by Employee through the date of termination; (ii) any benefits
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referred to in Paragraph 4 in which Employee has a vested right under the terms
and conditions of the plan or program pursuant to which such benefits were
granted; and (iii) severance pay based upon Employee's then existing salary,
payable semi-monthly or, at the Employer's sole option, payable in one lump sum
within 30 days after such termination. The amount of such severance pay shall be
the amount equal to (a) six months' salary in the case of a termination other
than for cause, other than one resulting from a change in control, and (b) one
year's salary in the case of a termination other than for cause resulting from a
change in control. The Company shall withhold: (i) all applicable federal, state
and local taxes as required by relevant law and regulations then in effect,
including, without limitation FICA and other taxes, and (ii) from or offset
against its payments to the Employee any liabilities or debts of the Employee to
the Employer and its Affiliates. The Company's obligations to make such payments
and provide such benefits shall be conditioned upon Employee's continuing
fulfillment of his obligations set forth in the Non-Disclosure, Assignment of
Developments, Non-Solicitation and Non-Competition Agreement executed in
connection herewith. The Company thereafter shall have no further obligations
under this Agreement.
(c) Employee may terminate this Agreement by resignation and giving
the Company one month's notice. The Company can waive this notice and agree with
Employee to an earlier termination date. Upon termination by Employee, Employee
shall be entitled to receive the compensation specified in Paragraphs 4(a), 4(b)
and 4(f) earned by Employee through the date of termination and any benefits
referred to in Paragraph 4 in which Employee has a vested right under the terms
and conditions of the plan or program pursuant to which such benefits were
granted. Thereafter, all obligations of the Company and Employee under this
Agreement will cease as of the date of final termination, except that Employee's
obligations under Paragraph 7 will survive. Such termination, however, shall
constitute a breach of the Purchase Agreement as set forth in Paragraph 8.
7. Restrictive Covenants and Confidentiality; Injunctive Relief. As a
condition to the Company agreeing to employ Employee and to the performance by
the Company of its obligations hereunder and under the Purchase Agreements,
particularly its obligations under Paragraph 4 hereof and, in the case where
Employee is terminated by the Company other than for cause, in consideration of
the payments as set forth in Paragraph 6(b) hereof, Employee shall agree to and
shall execute a Non-Disclosure, Assignment of Developments, Non-Solicitation and
Non-Competition Agreement.
8. Consideration Under Purchase Agreement. Employee acknowledges that
his execution and performance of this Agreement is essential and fundamental to
the Company's and Probex's agreement to acquire the business of PPI and
Intercoastal pursuant to the Purchase Agreement. Employee further acknowledges
that the termination of this Agreement pursuant to Paragraph 6(a) or 6(c) hereof
shall constitute a breach by Seller and the Shareholders (as defined in the
respective Purchase Agreements) of the covenant set forth in Section 10.3 of the
Purchase Agreement, entitling the Company and Probex to all of their remedies
thereunder.
9. Survival. The provisions of Paragraphs 7 shall survive the
termination of this Agreement for any reason whatsoever.
10. Miscellaneous.
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(a) Any notice authorized or required to be given or made by or
pursuant to this Agreement shall be made in writing and either personally
delivered or mailed by overnight express mail to the respective address of the
party to receive such notice, which address is the one designated below the name
of such party on the signature page hereof, or to such other address as a party
may specify by notice to the other parties hereto.
(b) This Agreement, together with its exhibits, cancels and
supersedes any and all prior agreements and understandings between the parties
hereto with respect to the employment by or obligations of Employee to any
thereof. This Agreement, together with its exhibits, constitutes the entire
agreement among the parties with respect to the matters herein provided, and no
modification or waiver of any provision hereof shall be effective unless in
writing and signed by both Employee and an authorized executive officer of the
Company.
(c) All of the terms and provisions of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
heirs, executors, administrators, legal representatives, successors and assigns
of the parties hereto, except that the duties and responsibilities of Employee
hereunder are of a personal nature and shall not be assignable or delegable in
whole or in part by Employee.
(d) Employee agrees that the obligations of the Company hereunder
shall be limited to the Company only, and Employee agrees that he shall not
bring any claim or suit against any director or shareholder of the Company or
any other person other than the Company for any breach or default by the Company
of its obligations hereunder.
(e) If any provision of this Agreement or application thereof to
anyone or under any circumstances is adjudicated to be invalid or unenforceable
in any jurisdiction, such invalidity or unenforceability shall not affect any
other provision or application of this Agreement which can be given effect
without the invalid or unenforceable provision or application and shall not
invalidate or render unenforceable such provision or application in any other
jurisdiction.
(f) No remedy conferred upon any party by this Agreement is intended
to be exclusive of any other remedy, and each and every such remedy shall be
cumulative and shall be in addition to any other remedy given hereunder or now
or hereafter existing at law or in equity. No delay or omission by any party in
exercising any right, remedy or power hereunder or existing at law or in equity
shall be construed as a waiver thereof, and any such right, remedy or power may
be exercised by the party possessing the same from time to time and as often as
may be deemed expedient or necessary by such party in its sole discretion.
(g) This Agreement may be executed in two counterparts, each of
which is an original. It shall not be necessary in making proof of this
Agreement or any counterpart hereof to produce or account for any of the other
counterparts.
(h) In the event of a lawsuit by either party to enforce any
provisions of this Agreement, the prevailing party shall be entitled to recover
reasonable costs, expenses and attorney's fees from the other party.
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11. Controlling Law. The validity, interpretation, construction,
performance and enforcement of this Agreement shall be governed by the laws of
the State of Texas.
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IN WITNESS WHEREOF, Employee has hereunto set his hand and the Company
has caused this instrument to be duly executed as of the day and year first
above written.
Employee:
/s/ XXXXXXX XXXXX XXXXX
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000 Xxxxxxxxx Xx.
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Xxxxxxxxxx, XX. 00000
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Address
Company:
Probex Fluids Recovery, Inc.
a Delaware Corporation
By: /s/ XXXXX XXXX
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Name: Xxxxx Xxxx
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Title: Director
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0000 XxXxx, Xxxxx 000
Xxxxxxxxxx, Xxxxx 00000
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