EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into as of the 31st day of December, 2000
between ABATIX CORP. ("Employer") and XXXXX X. XXXXXX ("Executive").
PRELIMINARY STATEMENT
Employer is a Delaware corporation with its principle place of business
in Dallas, Texas. Employer is engaged in the sale and distribution of personal
protection and safety equipment and durable and nondurable supplies to the
asbestos abatement, industrial safety and hazardous materials industries.
Executive has substantial business experience and related business skills which
can be utilized in Employer's business. Employer desires to employ Executive
upon the terms and conditions hereinafter set forth, and the Executive desires
to accept such employment. Employer and Executive desire to set forth in writing
the terms and conditions of their agreements and understandings.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, and other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto, intending to be
legally bound, hereby agree as follows:
I. DEFINITIONS
A. Executive. The term "Executive" as used herein shall mean XXXXX X. XXXXXX.
B. Annual Salary. For purposes of this Agreement, the term "Annual Salary" shall
mean the compensation payable to Executive as provided for in Section VI (A)
hereof.
C. Disabled. For purposes of this Agreement, Executive shall be deemed to be
"disabled" when, in the reasonable judgment of the Employer, he is unable to
perform substantially all of the duties by reason of him in connection with his
employment hereunder required of physical or mental illness or of injury for
ninety (90) consecutive days.
D. Cause. For purposes of this Agreement, the term "cause" is defined to include
the conviction by a court of law for acts of moral turpitude of Executive or
fraud of Executive relating to the business of the Employer; bankruptcy or
insolvency of the Executive if, in such an event, Executive is unable to perform
substantially all of the duties required of him as described in Section V of
this Agreement; the determination that Executive has become disabled as
described herein; material breach by Executive of the terms and conditions of
this Employment Agreement, or Executive's refusal to follow Employer's
reasonable orders and directions in connection with the performance of
Executive's duties as described in Section V of this Agreement, or any act or
action of executive which materially damages the business interests, reputation
or goodwill of Employer.
II. EMPLOYMENT
Employer hereby employs Executive, and Executive hereby accepts
employment by the Employer upon all the terms and conditions as are hereinafter
set forth.
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III. TERM
Subject to the provisions for termination, pursuant to Section XIII
hereof, the term of this Employment Agreement shall commence as of January 1,
2001 and shall terminate on December 31, 2002 (the "Employment Term").
IV. EXECUTIVE'S REPRESENTATION AND WARRANTIES
Executive represents and warrants to Employer that he is free to accept
employment with Employer as contemplated herein, and he has no other prior
obligation or commitments of any kind to anyone which would in any way interfere
with his acceptance, or the full performance of his obligations, under this
Agreement, or the exercise of his best efforts to his employment hereunder.
V. DUTIES AND EXTENT OF SERVICE
A. Efforts. Executive agrees to devote such working time, energy,
knowledge, and efforts as Employer deems necessary to the performance and
discharge of Executive's duties and responsibilities hereunder and such other
reasonable duties and responsibilities as are assigned to him from time to time
by the Board of Directors of Employer. Executive's duties hereunder shall be
performed at the business offices of Employer, but may also be performed at the
business offices of Employer, but may also be performed at such other places as
may be designated by Employer.
B. Position and Responsibilities. The Executive shall serve as
President and Chief Executive Officer of Employer, with such duties as are
assigned to him by the Board of Directors of Employer consistent with his status
and capacity as an executive of Employer. Following the term of this Agreement,
Employer and Executive shall negotiate in good faith the terms of renewal
hereof.
VI. COMPENSATION
As his entire compensation for services rendered to the Employer during
the Employment Term, in whatever capacity rendered, the Executive shall receive:
A. Annual Salary. Minimum Annual Salary shall be at an annual rate of $195,000
payable semi-monthly and continuing until termination of Executive's employment.
B. Bonus. Executive may receive such incentive bonus compensation, if any, as
the Board of Directors shall deem appropriate.
C. Automobile. Employer shall provide Executive an automobile, and provide all
expenses and repairs to such auto.
D. Fringe Benefits. Employer shall provide Executive with normal fringe benefits
provided to its senior executive personnel including but not limited to a
medical program, automobile, term life insurance, keyman disability, corporate
country club membership and such other fringe benefits as Employer may determine
from time to time. Health benefits for the Executive and his dependents are to
be paid by Employer.
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E. Termination Benefits. Employer shall pay Executive semi-monthly his standard
salary for a period of up to ninety (90) days, not to
exceed the termination date of this Agreement, following termination of
Executive's employment hereunder, for reasons other than disability.
VII. DEDUCTIONS
Deductions shall be made from Executive's total annual compensation and
any bonuses for withholding tax and other such taxes as may from time to time be
required by governmental authority.
VIII. EXPENSES
Executive is expected, from time to time, to incur reasonable
entertainment, travel and other expenses for promoting the business of Employer
which will be reimbursed by Employer. Reimbursement for such expenses however
shall be subject to such regulations and procedures as the Employer may from
time to time establish.
IX. FACILITIES
Employer shall provide and maintain such facilities, equipment and
supplies as it deems necessary for the Executive's performance of his duties
under this Employment Agreement.
X. EMPLOYER RECORDS
All books, records and documents relating to Employer's business shall
be the sole and permanent property of the Employer. An employee shall not be
entitled to retain any copies thereof, notwithstanding his participation
therein.
Unless required by service of legal process, no other Employer records
shall be displaced or delivered to, or any information therefrom displaced or
delivered to, or any information therefrom disclosed, to any person not
connected with the Employer except in strict accordance with the rules of the
Employer from time to time established. Employer shall provide Executive
reasonable access to all personnel records relating to Executive's employment
hereunder.
XI. PAID DAYS OFF
During the term of this Employment Agreement, Executive shall be
entitled to twenty five (25) days off with pay, which may be utilized at the
Executive's discretion.
XII. STANDARDS
The Executive shall perform his duties under this Agreement in
accordance with the highest standards of professional ethics and practices as
may from time to time be applicable during the Employment Term.
XIII. TERMINATION OF EMPLOYMENT
A. Events of Termination. The Employment Term may, at the option of the Board of
Directors of the Employer, be terminated upon the happening of any of the
following events:
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(1) Whenever the Executive accepts (without having obtained the prior written
consent of Employer) employment with any other company.
(2) Whenever the Executive shall become, without having obtained the prior
written consent of the Employer, a holder of five (5%) percent of the issued and
outstanding Common Stock of a competitor of the Employer, a director of a
competitor of Employer, or an officer, agent, or employee of any other company.
(3) Whenever the Executive and the Employer shall mutually agree in writing to
terminate this Agreement.
(4) At Employer's option at any time for cause, as that term is defined in
Section I.(D) hereof.
(5) If Executive shall suffer a disability as that term is defined in Section
I.(C) hereof provided that Executive shall be entitled to ninety (90) days
notice prior to such termination.
B. Notice of Termination. The Employment Term, may upon 30 days notice at the
option of the Executive, be terminated upon the happening of any of the
following events:
(1) Whenever the Executive and the Employer shall mutually agree in writing to
terminate this Agreement.
(2) Acts of material breach of any provision of this Agreement.
C. Amounts Due Executive/Employer. Within sixty (60) days of termination of this
Agreement for whatever reason, all amounts owing to either party will be due and
payable in full.
XIV. DISCLOSURE OF INFORMATION
Executive acknowledges that, in and as a result of his employment
hereunder, he will be making use of, acquiring and/or adding to confidential or
proprietary information developed by Employer and of a special and unique nature
and value to Employ- Employer, including, but not limited to, the nature and
material terms of business opportunities and proposals available to Employer,
Employer's products, methods, systems and research, the names and addresses of
its customers and suppliers, prices charges and paid by Employer or its
customers, designs and specifications, record cards, customers' and suppliers'
records, customer files, services, operating procedures, methods and systems,
financial records of the Employer and of customers, and other information, data,
and documents now existing or later acquired by Executive or Employer,
regardless of whether any such information, data or documents, qualify as a
"trade secret" under applicable Federal or State law (collectively, the
"Confidential Information"). As a material inducement to Employer to enter into
this Agreement, and to pay to Executive the compensation referred to in Section
VI hereof, along with other considerations provided herein, Executive covenants
and agrees that he shall not at any time during the Employment Term or following
any termination thereof, directly or indirectly, divulge or disclose or use for
any purpose whatsoever (except for the sole and exclusive benefit of Employer,
as reasonably required in connection with his duties to or as otherwise required
by law), any Confidential Information which has been obtained by or disclosed to
him as a result of his employment with Employer. In accordance with the
foregoing, the Executive further agrees that he will at no time retain or remove
from the premises of the Employer records of any kind or description whatsoever
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for any purpose whatsoever unless authorized by Employer, and will return all of
the foregoing to Employer upon Employer's request or any termination of his
employment. In the event of a breach or threatened breach by the Executive of
any of the provisions of this Section XIV, Employer, in addition to and not in
limitation of any other rights, remedies, or damages available to Employer at
law or in equity, shall be entitled to a permanent injunction in order to
prevent or to restrain any such breach by Executive, or by Executive's partners,
agents, representatives, servants, employers, employees and/or any and all
persons directly or indirectly acting for or with him.
XV. COVENANT AGAINST COMPETITION
A. Executive acknowledges that his services to be rendered hereunder
are of a special and unusual character which have a unique value to Employer,
the loss of which cannot adequately be compensated by damages in an action at
law. In view of the unique value to Employer of the services of Executive for
which Employer has contracted hereunder, and because of the Confidential
Information to be obtained by or disclosed to Executive as herein above set
forth, and as a material inducement to Employer to enter into this Employment
Agreement and to pay to Executive the compensation referred to in Section VI
hereof and other consideration provided herein, Executive covenants and agrees
that he will not during the term hereof and for a period of twelve (12) months
from the date of termination of this Agreement for any reason (i) engage,
directly or indirectly, in any business directly competitive with the asbestos
abatement industrial safety or hazardous material remediation supply business of
Employer (the "Activities") in any area within the states that the Company
presently is conducting business or subsequently is conducting business at the
time of the termination of this Agreement; (ii) call upon any customer or
customers of the Employer for the purposes of engaging in any activities for any
person, corporation, or entity other than Employer competitive with the
Activities of the Employer; or (iii) divert, solicit or take away any customer
or customers of the Employer for the purpose of engaging in any activities
competitive with the Activities of the Employer.
B. Executive covenants and agrees that if he shall violate any of his
covenants or agreements provided for pursuant to this Section, Employer shall be
entitled to an accounting and repayment of all profits, compensation,
commissions, remuneration, or benefits which Executive, directly or indirectly,
has realized and/or may realize as a result of, growing out of, or in connection
with any such violation; such remedy shall be in addition to and not in
limitation of any injunctive relief or other rights or remedies to which
Employer may be entitled to at law or in equity or under this Employment
Agreement.
XVI. REASONABLENESS OF RESTRICTIONS
A. Executive has carefully read and considered the provisions of
Section XIV and XV hereof, and having done so, agrees the restrictions set forth
in such Sections (including, but not limited to, the time period of restriction
and the geographical areas of restriction set forth in Section XV hereof) are
fair and reasonable and are reasonably required for the protection of the
interests of the Employer, its officers, directors, and other employees.
B. In the event that, notwithstanding the foregoing, any of the
provisions of Sections XIV and XV shall be held to be invalid or unenforceable,
the remaining provisions thereof shall nevertheless continue to be valid and
enforceable as though invalid or unenforceable parts had not been included
therein. In the event that any provision of Section XV hereof relating to time
period and/or areas of restriction shall be declared by a court of competent
jurisdiction to exceed the maximum time period or areas such court deems
reasonable and enforceable, said time period and/or areas of restriction shall
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be deemed to become, and thereafter be, the maximum time period and/or area
which such court deems reasonable and enforceable.
XVII. APPLICABLE LAW; SEVERABILITY
This Agreement shall be governed by and construed pursuant to the laws
of the State of Texas, where it is made and executed. If any terms or part of
this Agreement shall be determined to be invalid, illegal, or unenforceable in
whole or in part, the validity of the remaining part of such term or the
validity of any other term of this Agreement shall not in any way be affected.
All provisions of this Agreement shall be construed to be valid and enforceable
to the full extent permitted by law.
XVIII. NOTICE
Any notices required or permitted to be given pursuant to this
Agreement to the Employer or Executive shall be in writing and shall be deemed
given upon deposit of same in the U.S., certified mail or registered mail,
return receipt requested, first class postage and registration fees prepaid, and
addressed to the principle office of Employer and the most recent address of
Executive shown in the Employer's records, respectively, or such other addresses
as is most recently designated for the respective parties by notice given as
aforesaid.
XIV. BINDING PROVISIONS AND PERFORMANCE
This Agreement shall inure to the benefit of and be binding upon the
parties hereto, and all such parties agree to be bound by the provisions
contained herein.
XX. AMENDMENT
No amendment or variation of the terms of this Employment Agreement
shall be valid made in writing and signed by the parties hereto.
XXI. ENTIRE EMPLOYMENT AGREEMENT
This Employment Agreement represents the entire agreement between the
parties hereto with respect to the subject matter hereof.
XXII. WAIVER OF VIOLATION NOT CONTINUING
The waiver by either party of a breach or violation of any provision of
this Agreement shall not operate as or be construed to be a waiver of any
subsequent breach.
XXIII. ASSIGNMENT
This Agreement is personal to each of the parties hereto. Employer may
not assign its rights and obligations hereunder without the prior written
consent of Executive.
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XIV. HEADINGS AND GENDER
The paragraph headings used in this Agreement are included solely for
convenience and shall not affect, or be used in connection with, the
interpretation of this Agreement. All references to him or her shall be deemed
reference to the Executive regardless of gender.
XXV. COUNTERPARTS
This Employment Agreement may be executed in multiple counterparts,
each of which shall be an original, but all of which shall be deemed to
constitute one instrument.
In WITNESS WHEREOF, the undersigned have hereunto set their hands and
seals on the day and year first above written.
ABATIX CORP.
By:
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Authorized Signatory
By:
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Xxxxx X. Xxxxxx
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