Exhibit 10.1
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the “Agreement”) effective as of the 1st day
of October,2001 between Amour Fiber Core and or American Fiber Green Products, INC., with its successors and assigns referred to herein as the “Corporation”), with principal executive offices located at 0000 xxx xxxxxx Xxxxxxxxx Xxxxxxx
00000 and Xxxxxxx X. XxXxxxxx, residing at 0000 xxx xxxxxx Xxxxxxxxx Xxxxxxx 00000 (the “Executive”).
W I T N E S E T H:
WHEREAS, the Corporation desires to employ Executive as the CEO / President to engage in such activities and to render such services under
the terms and conditions hereof and has authorized and approved the execution of this Agreement; and
WHEREAS, Executive desires to be
employed by the Corporation under the Terms and conditions hereinafter provided;
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
herein contained, the parties agree as follows:
1. EMPLOYMENT, DUTIES AND ACCEPTANCE.
1.1 SERVICES. The Corporation hereby employs Executive, for the Term (as hereinafter defined in Section 2 hereof), to render services to the
business and affairs of the Corporation in the office referenced in the recitals hereof And, in connection therewith, shall perform such duties as directed by the Board Of Directors of the Corporation from time to time, in its reasonable discretion,
And shall perform such other duties as shall be consistent with the responsibilities of such office (collectively the “Services”). Executive shall perform activities related to such office as he shall reasonably be directed or requested to
so perform by the Corporation’s Board of Directors, to whom he shall report. Executive shall use his best efforts, skill and abilities to Promote the interests of the Corporation and its subsidiaries.
1.2 ACCEPTANCE. Executive hereby accepts such employment and agrees to render the Services.
1.3 REPRESENTATIONS OF THE EXECUTIVE. The Executive represents and warrants to the Corporation that his execution and delivery of this Agreement, his
performance of the Services hereunder and the observance of his other obligations contemplated hereby will not (i) violate any provisions of or require the consent or approval of any party to any agreement, letter of intent or other document to
which he is a party or (ii) violate or conflict with any arbitration award, judgment or decree or other restriction of any kind to or by which he is subject or bound.
1.4 EXECUTIVE’S ABILITY TO CONTRACT. The Executive has no ability to independently contract unless authorized, in writing, by the Executive
Committee of the Board of Directors or the full Board of Directors for a specific contract.
2. TERM OF EMPLOYMENT.
The term of Executive’s employment under this Agreement (the “Term”) shall commence on October 1, 2001 and shall terminate on
September 30, 2005, unless sooner terminated pursuant to Sections 9 or
5.1 of this Agreement; PROVIDED, HOWEVER, if the Corporation shall fail to give Executive notice of non-renewal not less than 60 days prior to the scheduled
expiration of the term hereof, the Term shall automatically be extended for an additional two (3) year period. Notwithstanding anything to the contrary contained herein, the provisions of this Agreement governing Protection of Confidential
Information shall continue in effect as specified in Section 10 hereof.
3. BASE SALARY, EXPENSE REIMBURSEMENT AND STOCK OPTIONS.
3.1 BASE SALARY. During the Term, as full compensation for the Services, the Corporation agrees to pay Executive a minimum base salary (“Base
Salary”) at the annual rate of $60,000 for the period from October 1, 2001 to September 30, 2006. Such Base Salary shall be (i) increased four percent (4%) annually effective October, 1st of each year during the term of this
Agreement, (ii) reviewed periodically for possible increases promptly after each future acquisition by the Corporation of any other corporation or business or other material increase in the Corporation’s revenues or scope of the
Corporation’s business and (iii) renegotiated in good faith effective as of December 15, 2003 for possible increase based upon the Corporation’s historical performance and projections for future performance. Such Base Salary shall be
subject to withholding and other applicable taxes, payable during the term of this Agreement in accordance with the Corporation’s customary payment practices, but not less frequently than monthly.
3.2 BUSINESS EXPENSE REIMBURSEMENT. Upon submission to, and approval by an officer of the Corporation designated by the Board of Directors of the
Corporation, of a statement of expenses, reports, vouchers or other supporting information, which approval shall be granted or withheld based on the Corporation’s policies in effect at such time, the Corporation shall promptly reimburse
Executive for all reasonable business expenses actually incurred or paid by him during the Term or renewals thereof in the performance of the Services, including, but not limited to, expenses for entertainment, travel and similar items.
3.3 STOCK OPTION AGREEMENT. In addition to the salary here in above provided, the Executive shall be granted options to purchase 100,000 shares of the
Corporation’s Common Stock as of June 1 of each year during the Term of this Agreement at an exercise price equal to the average of the closing bid and asked price of the Corporation’s Common Stock during month of May immediately
preceding said June 1, pursuant to the terms of the Stock Option Agreement between the Corporation and the Executive executed concurrently herewith.
4. PROFIT SHARING.
4.1 PROFIT SHARING AMOUNT. In order to provide performance-based incentive compensation to the Executive, the
Corporation hereby agrees to pay the Executive, in addition to the Base Salary set forth in Section 3 hereof, a minimum cash bonus for each fiscal year during the Executive’s employment hereunder (the “Bonus”) equal to Fifteen
Thousand Dollars ($15,000.00) per annum, payable in quarterly installments, when sufficient cash is available for the payment. Additional profit sharing or Bonus methods are available to the Executive in terms to be issued annually at the discretion
of the Board of Directors.
4.2 DETERMINATION AND PAYMENT. The final determination with respect to any fiscal year shall be made promptly,
and in any event within 15 days, after the Corporation has filed its Annual Report on Form 10-K for each year with the Securities and Exchange Commission. Within 45 days after the end of the Corporation’s fiscal year, based on the preliminary
results of the Corporation for such fiscal year, the Corporation shall pay the Executive an amount equal to 60% of the estimated
minimum cash Bonus based on such preliminary results. The balance of the definitive Bonus so determined, if any, shall be payable to the Executive in a
single lump sum no later than thirty days after the final determination has been made. In any event, all matters pertaining to the Bonus and to the payment of any Bonus to the Executive hereunder, shall be administered and determined by the Board of
Directors (or a subcommittee thereof appointed for such purpose) in its reasonable discretion consistent with the terms hereof, the determination of which shall be final, conclusive and binding for all purposes, absent manifest error.
4.3 PARTIAL YEARS. Notwithstanding anything contained herein to the contrary, no Bonus under this Section 4 shall be deemed earned or payable with
respect to any fiscal year during which this Agreement or the Executive’s employment is terminated by the Corporation for Cause (as such term is hereinafter defined).
4.4 Nothing in this Section 4 shall be construed as conferring upon the Executive any right (i) normally associated with the ownership of
capital stock; (ii) to continue in the employ of the Corporation or any affiliate of the Corporation; or (iii) to interfere in any way with the right of the Corporation to terminate this Agreement in accordance with the provisions hereof.
Nothing in this Agreement shall be construed to imply that any specific assets of the Corporation have been set aside to provide for payments under this Agreement. Any payments under this Agreement shall be made solely from general assets of the
Corporation existing at the time such payments are due.
5. SEVERANCE UPON TERMINATION.
5.1 TERMINATION. In the event that Executive’s employment hereunder shall be terminated by the Corporation without Cause (as defined in
Section 9.3 hereof) or by the Executive for Good Reason (as defined in Section 9.4 hereof) or upon a Change in Control (as defined in Section 9.5 hereof) or upon the Death or Disability (as defined in Section 9.1 and 15.1,
respectively) of Executive at any time prior to the end of the Term, the Executive or his estate shall be entitled to receive from the Corporation, in addition to any Base Salary earned to the date of termination, a severance payment in an amount
equal to the greater of (i) the balance of the Executive’s Base Salary due through the balance of the Term of this Agreement or (ii) two years salary in the event less than one year remains in the current contract period.
6. ADDITIONAL BENEFITS.
6.1 IN GENERAL. In addition to
the compensation, bonuses, expenses and other benefits to be paid under Sections 3, 4 and 5 hereof, Executive will be entitled to all rights and benefits for which he shall be eligible under any insurance, health and medical, incentive, bonus,
profit-sharing, pension or other extra compensation or “fringe” benefit plan of the Corporation or any of its subsidiaries now existing or hereafter adopted for the benefit of the executives or employees generally of the Corporation. The
provisions of this Agreement which incorporate employee benefit packages shall change as and when such employee benefit packages change. In the event that the Corporation does not provide family health and medical insurance for the benefit of the
executives and employees generally of the Corporation, the Corporation shall provide Executive and pay all the costs associated with family health and medical insurance for the benefit of Executive as selected by Executive in his sole discretion.
6.2 AUTOMOBILE. The Corporation shall lease for the Executive an automobile of his choice to be used by the Executive in connection with
the Corporation’s business, at a monthly rental not to exceed $750 and for a lease term not to exceed three (3) years. The Corporation shall be responsible for all reasonable costs of operating, repairing, maintaining and insuring such
automobile.
6.3 LIFE AND DISABILITY INSURANCE. The Corporation shall provide the Executive with (i) a policy of
term life insurance in an amount equal to not less than three (3) times his annual Base Salary hereunder, payable to such beneficiary or beneficiaries as shall be designated by him in writing and (b) a policy of disability insurance that
will provide Executive with an annual amount equal to not less than seventy-five percent (75%) of his then current Base Salary, payable until Executive shall reach 70 years of age, with a waiting period not to exceed 120 days.
6.4 DIRECTOR’S AND OFFICERS INSURANCE. The Corporation shall provide the Executive with a policy of director’s and officers liability insurance
in such amounts and providing such coverage as the Executive and the Corporation shall reasonably agree, consistent with policies obtained by other publicly held companies of similar size and engaged in similar businesses.
7. VACATION.
The Executive shall be entitled, during the Term of this
Agreement, to a vacation period annually, as follows:
October 1, 2001 through September 30, 2002 — four (4) weeks in each year of the
contract; during which all salary, compensation, benefits and other rights to which the Executive is entitled to hereunder shall be provided in full. Such vacation may be taken in the Executive’s discretion, at such time or times as are not
inconsistent with the reasonable business needs of the Corporation. In addition, Executive shall be entitled to up to eight (8) sick days and two (2) personal days for each year commencing October 1, during which all salary,
compensation, benefits and other rights to which the Executive is entitled to hereunder shall be provided in full.
8. INSURABILITY; RIGHT TO INSURE.
Executive agrees that the Corporation shall have the right during the Term to insure the life of Executive by a policy or policies of insurance in such amount or amounts as it may deem necessary or desirable, and the Corporation shall be the
beneficiary of any such policy or policies and shall pay the premiums or other costs thereof. The Corporation shall have the right, from time to time, to modify any such policy or policies of insurance or to take out new insurance on the life of
Executive. Executive agrees, upon request, at any time or times prior to the commencement of or during the Term to sign and deliver any and all documents and to submit to any physical or other reasonable examinations which may be required in
connection with any such policy or policies of insurance or modifications thereof.
9. TERMINATION.
9.1 DEATH. If Executive dies during the Term of this Agreement, Executive’s employment hereunder shall terminate upon his death and all obligations
of the Corporation hereunder shall terminate on such date, except that Executive’s estate or his designated beneficiary shall be entitled to payment of any unpaid accrued Base Salary through the date of his death. In addition, any accrued and
unpaid Bonus shall be paid in accordance with Section 4 hereof. In addition, Executive’s estate or his designated beneficiary shall be entitled to payment of the severance payments set forth in Section 5.1 hereof.
9.2 TERMINATION FOR CAUSE. The Corporation may at any time during the Term, without any prior notice, terminate this Agreement and discharge Executive
for Cause, whereupon the Corporation’s obligation to pay compensation or other amounts payable hereunder to or for the benefit of Executive shall terminate on the date of such discharge. As used herein the term Cause shall mean: (i) a
willful and material breach by Executive of the terms of this Agreement which breach shall not have
been cured within thirty (30) days of written notice of such breach; (ii) willful violation of specific and lawful written direction from the Board
of Directors of the Corporation, which violation shall not have been cured within thirty (30) days of written notice of such violation, provided such direction is not inconsistent with the Executive’s duties and responsibilities as the
CEO/President of the Corporation. The obligations of the Executive under Section 10 shall continue notwithstanding termination of the Executive’s employment pursuant to this Section 9.2.
9.3 TERMINATION WITHOUT CAUSE. The Corporation shall have the option to terminate this Agreement Without Cause upon sixty (60) days written notice
to the Executive. In the event the Corporation terminates this Agreement without Cause as defined above, the Corporation shall pay the Executive upon termination, the amount required pursuant to Section 5.1. The obligations of the
Executive under Section 10 hereof shall continue notwithstanding termination of the Executive’s employment pursuant to this Section 9.3.
9.4 TERMINATION BY EXECUTIVE FOR GOOD REASON. The Executive shall have the right to terminate this Agreement for Good Reason, as hereinafter defined,
upon written notice to the Corporation. Good Reason shall mean any of the following: (i) the assignment to the Executive of duties inconsistent with the Executive’s position, duties, responsibilities, titles or offices as described
herein; (ii) any material reduction by the Corporation of the Executive’s duties and responsibilities; (iii) any reduction by the
Corporation of the Executive’s compensation or benefits payable hereunder (it being understood that a reduction of benefits applicable to all executives of the Corporation, including the Executive, shall not be deemed a reduction of the
Executive’s compensation package for purposes of this definition); (iv) requiring the Executive to be based without his consent at a location not within reasonable commuting distance of Tampa, Florida.
9.5. TERMINATION BY EXECUTIVE UPON CHANGE IN CONTROL. Executive, at his option, shall be able to terminate this Agreement upon written notice given to
the Secretary of the Corporation within ninety (90) days of an occurrence of a “Change in Control”. A “Change in Control” of the Corporation shall mean a change in control of the Corporation or any entity controlling the
Corporation (referred to collectively in this Section 9.5 as the Corporation) of a nature that would be required to be reported in response to Item 1 of a Current Report on Form 8-K, pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 (the “Exchange Act”); PROVIDED THAT, without limitation, such a Change in Control shall be deemed to have occurred at such time as (a) any “person” (as such term is used in Sections 13(d) and 14(d) of
the Exchange Act), other than a person who or which was a shareholder of the Corporation immediately prior to the Corporation’s secondary offering (the “SO”), is or becomes the “beneficial owner” (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the Corporation representing twenty-five percent (25%) or more of the combined voting power of the Corporation’s outstanding securities ordinarily having the right to vote at
elections of directors; or (b) individuals who constitute the Board concurrent with the execution of this Agreement (the incumbent Board) cease for any reason to constitute at least a majority thereof, PROVIDED THAT any person becoming a
director subsequent to the date hereof whose election or nomination for election by the Corporation’s shareholders was approved by a vote of at least three quarters of the directors comprising the Incumbent Board, shall be, for purposes of this
clause (b), considered as though he were a member of the Incumbent Board; or (c) a sale by the Corporation of all or substantially all of its assets occurs. Notwithstanding anything in the foregoing to the contrary, no Change in Control shall
be deemed to have occurred for purposes of this Agreement by virtue of any transactions which result in the acquisition by the Executive, or by a group of persons which includes the Executive, directly or indirectly, of a majority of the outstanding
shares of common stock of the Corporation or the voting securities of any corporation which acquires all or substantially all of the assets of the Corporation, whether by way of merger, consolidation, sale of such assets or otherwise.
10. PROTECTION OF CONFIDENTIAL INFORMATION.
In view of the fact that Executive’s work for the Corporation will bring him into close contact with confidential information and plans for future
developments, Executive agrees to the following:
10.1 SECRECY. To keep secret and retain in the strictest confidence all confidential
matters of the Corporation, including, without limitation, trade “know how” and trade secrets, customer lists, pricing policies, marketing plans, technical processes, formulae, inventions, research projects, patents or copyrights and all
other proprietary rights owned by or in which the corporation or its subsidiaries has an interest, and other business affairs of the Corporation, learned by him heretofore or hereafter, and not to disclose them to anyone inside or outside of the
Corporation, except in the course of performing the Services hereunder or with the express written consent of the Chief Executive Officer or Board of Directors of the Corporation and except to the extent such information is already known to the
general public
10.2 RETURN MEMORANDA, ETC. To deliver promptly to the Corporation on termination of his employment, or at any other time
as the Chief Executive Officer or the Board of Directors of the Corporation may so request, all memoranda, notes, records, reports, manuals, drawings, blueprints, facsimile or E-mail copies and other documents (and all copies thereof) relating to
the Corporation’s business and all property associated therewith, which he may then possess or have under his control.
10.3
COVENANTS.
10.3.1 NON-COMPETITION. Executive agrees that at all times while he is employed by the Corporation and
regardless of the reason for termination of his employment or this Agreement, for a period of one (1) year thereafter, he will not, as a principal, agent, employee, employer, consultant, stockholder, investor, director or co-partner of any
person, firm, corporation or business entity other than the Corporation, or in any individual or representative capacity whatsoever, directly or indirectly, without the express prior written consent of the Corporation:
(i) engage or participate in any business with customers of the Corporation or its subsidiaries directly or indirectly or make use of the customer lists
directly or indirectly as may from time to time be owned by the Corporation.
(ii) aid or counsel any other person, firm, corporation or
business entity to do any of the above;
(iii) become employed by a firm, corporation, partnership or joint venture which competes with the
business of the Corporation or from its customer lists on the date of termination or resignation within the United States or Puerto Rico; or
(iv) approach, solicit business from, or otherwise do business or deal with any customer of the Corporation in connection with any product or service competitive to any provided by the Corporation.
10.3.2 ANTI-RAIDING. Executive agrees that during the term of his employment hereunder, and, thereafter for a period of two (2) year,
he will not, as a principal, agent, employee, employer, consultant, director or partner of any person, firm, corporation or business entity other than the
Corporation, or in any individual or representative capacity whatsoever directly or indirectly, without the prior express written consent of the Corporation
approach, counsel or attempt to induce any person who is then in the employ of the Corporation to leave the employ of the Corporation or employ or attempt to employ any such person or persons who at any time during the preceding six months was in
the employ of the Corporation.
10.3.3 EXECUTIVE’S ACKNOWLEDGEMENTS. Executive acknowledges (I) that his position with
the Corporation requires the performance of services which are special, unique, and extraordinary in character and places him in a position of confidence and trust with the Customers and employees of the Corporation, through which, among other
things, he shall obtain knowledge of the Corporation’s “technical information” and “know-how” and become acquainted with its customers, in which matters the Corporation has substantial proprietary interests; (ii) that
the restrictive covenants set forth above are necessary in order to protect and maintain such proprietary interests and the other legitimate business interests of the Corporation; and (iii) that the Corporation would not have entered into this
Agreement unless such covenants were included herein.
Executive also acknowledges that the business of the Corporation
presently will extend throughout the United States, and that he will personally supervise and engage in such business on behalf of Corporation and, accordingly, it is reasonable that the restrictive covenants set forth above are not more limited as
to geographic area than is set forth therein. Executive also represents to the Corporation that the enforcement of such covenants will not prevent Executive from earning a livelihood or impose an undue hardship on the Executive.
10.4 SEVERABILITY. If any of the provisions of this Section 10, or any part thereof, is hereinafter construed to be invalid or unenforceable, the
same shall not affect the remainder of such provision or provisions, which shall be given full effect, without regard to the invalid portions. If any of the provisions of this Section 10, or any part thereof, is held to be unenforceable because
of the duration of such provision, the area covered thereby or the type of conduct restricted therein, the parties agree that the court making such determination shall have the power to modify the duration, geographic area and/or other terms of such
provision and, as so modified, said provision(s) shall then be enforceable. In the event that the courts of any one or more jurisdictions shall hold such provisions wholly or partially unenforceable by reason of the scope thereof or otherwise, it is
the intention of the parties hereto that such determination not bar or in any way affect the Corporation’s right to the relief provided for herein in the courts of any other jurisdictions as to breaches or threatened breaches of such provisions
in such other jurisdictions, the above provisions as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
10.5 INJUNCTIVE RELIEF. Executive acknowledges and agrees that, because of the unique and extraordinary nature of his services, any breach or threatened breach of the provisions of Sections 10.1, 10.2, or 10.3 hereof
will cause irreparable injury and incalculable harm to the Corporation, and the Corporation shall, accordingly, be entitled to injunctive and other equitable relief for such breach or threatened breach and that resort by the Corporation to such
injunctive or other equitable relief shall not be deemed to waive or to limit in any respect any right or remedy which the Corporation may have with respect to such breach or threatened breach. The Corporation and Executive agree that any such
action for injunctive or equitable relief shall be heard in a state or federal court situated in Florida and each of the parties hereto, hereby agrees to accept service of process by registered mail and to otherwise consent to the jurisdiction of
such courts.
10.6 EXPENSES OF ENFORCEMENT OF COVENANTS. In the event that any action, suit or proceeding at law or in equity is brought to
enforce the covenants contained in Sections 10.1, 10.2, or 10.3 hereof or to obtain money damages for the breach thereof, the party
prevailing in any such action, suit or other proceeding shall be entitled upon demand, to reimbursement from the other party for all expenses (including,
without limitation, reasonable attorneys’ fees and disbursements) incurred in connection therewith.
10.7 SEPARATE AGREEMENT. The
provisions of this Section 10 shall be construed as an agreement on the part of the Executive independent of any other part of this Agreement or any other agreement, and the existence of any claim or cause of action of the Executive against the
Corporation, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Corporation of the provisions of this Section 10.
11. INDEMNIFICATION.
The Corporation shall provide the Executive (including his heirs, executors and
administrators) with coverage under a standard directors and officers liability insurance policy at the Corporation’s expense to the same extent as provided for any other director, officer or trustee of the Corporation. In addition, the
Corporation shall indemnify the Executive (and his heirs, executors and administrators) to the fullest extent permitted under the law of its state of incorporation against all expenses and liabilities reasonably incurred by him in connection with or
arising out of any action, suit or proceeding in which the Executive may be involved by reason of his having been a director or officer of the Corporation or any subsidiary thereof. Such expenses and liabilities shall include, but not be limited to,
judgments, court costs and attorneys’ fees and the cost of reasonable settlements, such settlements to be approved by the Board if such action is brought against the Executive in his capacity as a director or officer of the Corporation or any
subsidiary thereof. The Corporation shall, upon the request of the Executive, advance to the Executive such amounts as necessary to cover expenses, including without limitation legal fees and expenses, incurred by the Executive in connection with
any suit or proceeding in which the Executive may be involved by reason of his being or having been a director or officer of the Corporation or of any subsidiary thereof. Such indemnity and advance of expenses, however, shall not extend to matters
as to which the Executive is finally adjudged to be liable for willful misconduct in the performance of his duties.
12. ARBITRATION.
Except with respect to any proceeding brought under Section 10 hereof, any controversy, claim, or dispute between the parties, directly or
indirectly, concerning this Employment Agreement or the breach hereof, or the subject matter hereof, including questions concerning the scope and applicability of this arbitration clause, shall be finally settled by arbitration in Hillsboro County,
Florida pursuant to the rules then applying of the American Arbitration Association. The arbitrators shall consist of one representative selected by the Corporation, one representative selected by the Executive and one representative selected by the
first two arbitrators. The parties agree to expedite the arbitration proceeding in every way, so that the arbitration proceeding shall be commenced within thirty (30) days after request therefore is made, and shall continue thereafter, without
interruption, and that the decision of the arbitrators shall be handed down within thirty (30) days after the hearings in the arbitration proceedings are closed. The arbitrators shall have the right and authority to assess the cost of the
arbitration proceedings and to determine how their decision or determination as to each issue or matter in dispute may be implemented or enforced. The decision in writing of any two of the arbitrators shall be binding and conclusive on all of the
parties to this Agreement. Should either the Corporation or the Executive fail to appoint an arbitrator as required by this Section 12 within thirty (30) days after receiving written notice from the other party to do so, the arbitrator
appointed by the other party shall act for all of the parties and his decision in writing shall be binding and conclusive on all of the parties to this Employment Agreement. Any decision or award of the arbitrators shall be final and conclusive on
the parties to this Agreement; judgment upon such decision or award may be entered
in any competent Federal or state court located in the United States of America; and application may be made to such court for confirmation of such decision
or award or for enforcement and for any other legal remedies that may be necessary to effectuate such decision or award.
13. NOTICES.
All notices, requests, consents and other communications required or permitted to be given hereunder, shall be in writing and shall be deemed to have been duly given if
delivered personally or sent by prepaid telegram, telecopy or mailed first-class, postage prepaid, by registered or certified mail (notices sent by telegram or mailed shall be deemed to have been given on the date sent), to the parties at their
respective addresses hereinabove set forth or to such other address as either party shall designate by notice in writing to the other in accordance herewith. Copies of all notices shall be sent to the attorney selected by the Executive and noticed
in writing to the Corporation from time to time.
14.1 GOVERNING LAW. This Agreement shall be
governed by and construed and enforced in accordance with the local laws of the State in which the primary corporate offices of the parent corporation are located at the time either party seeks remedies or to enforce this contract. The venue shall
be in the county in which the primary corporate offices of the parent corporation are then located at the time either party seeks remedies or to enforce this contract.
14.2 CAPTIONS. The section headings contained herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
14.3 ENTIRE AGREEMENT. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and
supersedes all prior agreements, arrangements and understandings, written or oral, relating to the subject matter hereof. No representation, promise or inducement has been made by either party that is not embodied in this Agreement, and neither
party shall be bound by or liable for any alleged representation, promise or inducement not so set forth.
14.4 SEVERABILITY. If any of the
provisions of this Agreement shall be unlawful, void, or for any reason, unenforceable, such provision shall be deemed severable from, and shall in no way affect the validity or enforceability of, the remaining portions of this Agreement.
14.5 WAIVER. The waiver by any party hereto of a breach of anyprovision of this Agreement by any other party shall not operate or be
construed as a waiver of any subsequent breach of the same provision or any other provision hereof.
14.6 COUNTERPARTS. This Agreement may
be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same Agreement.
14.7 ASSIGNABILITY. This Agreement, and Executive’s rights and obligations hereunder, may not be assigned by Executive. The Corporation may assign its rights, together with its obligations, hereunder in
connection with any sale, transfer or other disposition of all or substantially all of its business or assets; in any event the rights and obligations of the Corporation hereunder shall be binding on its successors or assigns, whether by merger,
consolidation or acquisition of all or substantially all of its business or assets; provided, however, that any such assignment shall not release the Corporation from its obligations hereunder. This Agreement shall inure to the benefit of, and be
binding upon, the Executive and his executors, administrators, heirs and legal representatives.
14.8 AMENDMENT. This Agreement may be amended, modified, superseded, cancelled, renewed or extended and
the terms or covenants hereof may be waived, only by a written instrument executed by both of the parties hereto, or in the case of a waiver, by the party waiving compliance. No superseding instrument, amendment, modification, cancellation, renewal
or extension hereof shall require the consent or approval of any person other than the parties hereto. The failure of either party at any time or times to require performance of any provision hereof shall in no matter affect the right at a later
time to enforce the same.
No waiver by either party of the breach of any term or covenant contained in this Agreement, whether by conduct or otherwise, in
any one or more instances, shall be deemed to be, or construed as, a further or continuing waiver of any such breach, or a waiver of the breach of any other term or covenant contained in this Agreement.
15. ADDITIONAL PROVISIONS
15.1 DISABILITY. If Executive
shall be unable to perform a significant part of his duties and responsibilities in connection with the conduct of the business and affairs of the Corporation and such inability lasts for (i) a period of at least one hundred twenty
(120) consecutive days, or (ii) periods aggregating at least one hundred eighty (180) days during any three hundred sixty-five (365) consecutive days, by reason of Executive’s physical or mental disability, whether by reason
of injury, illness or similar cause, Executive be deemed disabled, and the Corporation may, at any time thereafter terminate Executive’s employment hereunder by reason of the Corporation being required to replace the position. Upon delivery to
Executive of such notice, all obligations of the Corporation hereunder shall terminate, except that Executive shall be entitled to payment of any unpaid accrued Base Salary through the date of termination. In addition, any accrued and unpaid Bonus
shall be paid in accordance with Section 4 hereof. In addition, the Executive shall be entitled to those severance payments set forth in Section 5.1 hereof. The obligations of Executive under Section 10 hereof shall continue
notwithstanding termination of Executive’s employment pursuant to this Section 15.1.
IN WITNESS WHEREOF, the parties have
executed this Agreement as of the date first above written.
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AMOUR FIBERCORE, INC. American Fiber Green Products, INC |
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Name: Title |
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Name: Title |
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Xxxxxxx X. XxXxxxxx, individually |
