1
10.23 Employment Agreement dated January 1, 1997 with Xxxxxx X. Xxxxxxxx
EMPLOYMENT AGREEMENT
THIS AGREEMENT (hereinafter the "Agreement") is made and entered into
this 1st day of January, 1997 by and between KYZEN CORPORATION, a Utah
Corporation, (hereinafter "Employer") and Xxxxxx X. Xxxxxxxx, an individual
(hereinafter "Employee").
RECITALS
WHEREAS, Employer has been formed to engage in the manufacture of
specialty chemicals, water management systems, specialty cleaning systems,
integration of processes into cleaning machines and associated businesses; and
WHEREAS, Employee has experience and background to participate in the
above designated businesses; and
WHEREAS, Employer desires to engage Employee, and Employee desires to
become so engaged.
NOW, THEREFORE, in view of the foregoing recitals, which are
incorporated as a part of this Agreement, and in consideration of the mutual
covenants contained herein and the mutual benefits to be derived hereunder, the
parties agree as follows:
1. Employment. Employer hereby employs Employee to perform those duties
assigned to Employee by Employer, and Employee accepts and agrees to such
employment. Employee's first assignment shall be Vice President-Marketing.
Employee's initial salary shall be at rate of Seven Thousand Six Hundred Sixty
Six Dollars and Sixty Seven cents ($7,666.67) per month (payable in pro-rated
semi-monthly payments on the 15th and 30th or last day of each month). Employer
will review Employee's salary approximately annually, taking into consideration
such factors as changes in the consumer price index, the level of the salaries
of employees in comparable positions, and the earnings and cash flow of the
Employer. In addition the Employee, based on management and Board of Director
recommendations, will be invited to participate based on his performance,
knowledge and accomplishments in his job, in equity in the Employer through the
Employer's Incentive Stock Option Plan. Employer will provide Employee with
medical insurance coverage to cover his family based on the current Kyzen
Employee Benefit plan. This medical coverage is anticipated to take effect on or
about January 1, 1997 provided the employee and his family can qualify with the
insurance carrier underwriting the medical plan.
In addition to Employee's salary, Employee shall be entitled to
participate in the insurance and other fringe benefit programs (including but
not limited to the Management Disability Insurance Coverage Plan) which Employer
provides to its other full-time employees.
2. Term. The first term of this Agreement shall begin on January 1,
1997, and shall continue for a period of one year. Thereafter, this Agreement
shall continue for successive one year periods until it is terminated by a
minimum of sixty (60) days written notice from either party to the other party
prior to the end of an existing one year period; provided, however, that in the
event that more than twenty percent (20%) of the voting common stock of the
Employer is acquired by a person or entity (other than an underwriter) which
does not own or control shares of the common stock of the Employer as of January
1, 1994 and such acquisitions results in a change of control over the Employer,
and Employer terminates this Agreement as a result of such change in control
over Employer, then for a period of two (2) years after such termination
Employee shall be entitled to receive semi-monthly severance payments equal to
salary payments which otherwise would have been paid to Employee pursuant to
this Agreement.
If Employee terminates this Agreement, Employer shall have the option
of terminating this Agreement either immediately or at the end of the calendar
month in which notice is given.
3. Salary Deferral In the event that the Employer determines that it
does not have the necessary funds to pay the full amount of the salary of
Employee without impairing its working capital, Employee agrees to
2
defer the unpaid portion of such salary, subject to interest accruals at the
rate of twelve percent (12%) per annum compounded monthly, on a basis of parity
with other employees who are also deferring payment of their salaries. Payment
of any deferred salary, plus accrued interest, may be made at any time at the
sole discretion of the Employer; provided, however, that in the event that the
Employer terminates this Agreement, then the Employer shall pay all unpaid
salary, plus accrued interest, within thirty (30) days after such termination of
this Agreement.
4. Duties. Employee shall perform those duties assigned by Employer,
subject to the general supervision and direction of Employer. Employee shall
devote substantially all of his working time and efforts to the business of
Employer and its subsidiaries or affiliates, if any, and shall not during the
term of this Agreement be engaged in any other business activities (defined to
be services, transactions, non-passive investments, or other activity engaged in
for the direct financial benefit of the Employee) without the express written
consent of Employer.
5. Best Efforts. Employee agrees that he will at all times faithfully,
industriously, and to the best of his ability, experience, and talents, perform
all of his duties assigned by Employer.
6. Covenant Not To Compete. During the period of this Agreement, and
for a period of two (2) years after its termination, Employee shall not, without
the express written consent of Employer, compete with Employer in any fashion,
including but not limited to directly or indirectly engaging in, assisting,
performing services for, establishing or opening, or having any equity interest
(other than ownership of ten (10) percent or less of the outstanding stock of
any corporation listed on the New York or American Stock Exchanges or included
in the National Association of Securities Dealers Automated Quotation System) in
any person, firm, corporation, or business entity, whether as an employee,
officer, director, agent, security holder, creditor, consultant, or otherwise,
that engages in the specialty chemical, specialty equipment or water treatment
businesses in competition with Employer. This covenant shall be construed as a
series of separate covenants, one for each separate market area. If, in any
judicial proceeding, a court shall refuse to enforce any of these separate
covenants, then the unenforceable covenants shall be deemed eliminated from this
Agreement to the extent necessary to permit the remaining separate covenants to
be enforced. Each covenant contained or described in this paragraph 6 shall
survive expiration or termination of this Agreement.
7. Non-Disclosure of Information. Employee shall not duplicate or
disclose to any person not authorized to receive or use same, any of Employer's
Proprietary and/or Confidential Information, including, but not limited to,
Employer's data, information, lists, studies, plans, procedures, results,
methods, ideas, processes, research, developments, specifications, know how, or
any copy thereof. Employee specifically acknowledges, understands, and agrees
that he does not and shall not have any ownership or interest in any Proprietary
and/or Confidential Information, whether learned developed, modified, or
improved, through the efforts of Employee or otherwise. Employee shall keep
himself informed of Employer's policies and procedures for safeguarding
Employer's property, including and Proprietary and/or Confidential Information,
and shall reasonably comply with those policies and procedures at all times.
Employee shall not, without the express authorization of Employer, remove any of
Employer's property from Employer's premises; and shall return to Employer,
immediately upon expiration or termination of his employment or this Agreement,
any and all of Employer's property in his possession or control. Each covenant
contained or described in this paragraph 7 shall survive expiration or
termination of this Agreement.
8. Modification of Agreement. This Agreement can only be modified by a
separate writing, other than an instrument of payment, signed by both parties.
9. Binding. This Agreement is for the benefit of and is binding upon
the parties hereto, their successors, heirs, and personal representatives.
10. Notices. Any notices, request, instruction, report, or other
document to be given to the parties shall be in writing and delivered
personally, by courier, by Federal Express or sent by certified mail, postage
prepaid. Agreed upon addresses for notice deliveries are:
3
Employer: 000 Xxxxxxx Xxxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Employee: 0000 Xxxxxx Xx.
Xxxxxxxxx, XX 00000
11. Paragraph number and headings. Headings and paragraph numbers have
been inserted herein solely for convenience and reference and shall not be
construed to affect the meanings, construction or effect of this Agreement.
12. Arbitration. Any and all disputes, or disagreements controversies
with the exception of those arising out of paragraphs 6 and 7, relating to or
arising out of this Agreement shall be submitted to binding arbitration in the
City of Nashville, Tennessee, according to the rules and regulations of the
American Arbitration Association, and binding judgment based on the decision of
the arbitrator may be entered in any court of competent jurisdiction.
13. Default. If either party defaults in any of the covenants or
agreements herein contained, the defaulting party shall pay all costs and
expenses, including reasonable attorney's fees, incurred by the other party in
enforcing its rights arising under this Agreement, whether incurred through
legal action or otherwise.
14. Enforcement. Employee acknowledges that any remedy at law for
breach of paragraphs 6 and 7 would be inadequate, acknowledges that Employer
would be irreparably damaged by an actual or threatened breach thereof, and
agrees that Employer shall be entitled to an injunction restraining Employee
from any actual or threatened breach of paragraphs 5 and 6, as well as any
further appropriate equitable relief, without any bond or other security being
required. In addition to the foregoing, each of the parties hereto shall be
entitled to any remedies available at law, in equity, or by statute.
15. Applicable Law. This agreement shall be governed by the laws of the
State of Tennessee.
16. Severability. If and to the extent that any court of competent
jurisdiction holds any provision or any part hereof to be invalid or
unenforceable, such holding shall in no way affect the validity of the remainder
of this Agreement.
17. Waiver. No failure by either party to insist upon the strict
performance of any covenant, duty, agreement, or condition of this Agreement, or
to exercise any right or remedy upon the breach thereof, shall constitute a
waiver of any breach of this Agreement.
18. Entire Agreement. This Agreement contains the entire agreement of
the parties and supersedes all prior agreements, negotiations, and
understandings between the parties with regard to employment of Employee by
Employer.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first hereinabove written.
EMPLOYEE EMPLOYER
/s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxx
------------------------ ----------------------
Its: President & CEO
