EXHIBIT 10.6
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
this 1st day of February, 2002, by and between Absorption, Corp., a Nevada
corporation (the "Company"), and Xxxxx Xxxxxxxx, an individual resident of the
State of Washington, USA (the "Executive").
WITNESSETH:
WHEREAS, the Executive has heretofore been serving as Chief Financial
Officer of the Company and has the experience to provide services;
WHEREAS, the Company desires to retain the services of the executive,
and the Executive desires to be employed by the Company for the term of this
Agreement and each wants the terms and conditions as set out herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, the Company and the Executive,
intending to be legally bound, hereby agree as follows:
1. EMPLOYMENT. The Company hereby employs the Executive as the Chief
Financial Officer and the Executive accepts such employment and agrees to
perform services for the Company, subject always to such resolutions as are
established from time to time by the Board of Directors of the Company, for the
period and upon the other terms and conditions set forth in this Agreement.
2. TERM. The term of the Executive's employment hereunder shall be for
a period of three (3) years, commencing on the date of this Agreement and shall
be automatically extended for additional one (1) year period unless either party
sends the other party a notice of its intention not to extend within 90 days
before the expiration of the each year of the term so that the Executive shall
have a three (3) year contract at all times. The term of the Executive's
employment hereunder is subject to earlier termination as hereafter specified.
3. POSITION AND DUTIES.
3.1 SERVICE WITH THE COMPANY. During the term of this Agreement, the
Executive agrees to perform the duties of Chief Financial Officer including such
executive employment duties as the Company's Board of Directors (the "Board")
shall assign to him from time to time, and is customary for a similar position
within the Company's industry.
3.2 NO CONFLICTING DUTIES. During the term hereof, the Executive shall
devote his time, effort and skill to the operation of the Company, and will
offer any directly relevant
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business opportunity he encounters to the Company. The Executive hereby confirms
that he is under no contractual commitments inconsistent with his obligations
set forth in this Agreement, and that during the term of this Agreement, he will
not render or perform services, or enter into any contract to do so, for any
other corporation, firm, entity or person which are inconsistent with the
provisions of this Agreement.
4. COMPENSATION.
4.1 BASE SALARY. As compensation for all services to be rendered by the
Executive under this Agreement, the Company shall pay to the Executive a base
annual salary of $10,000.00 per month (the "Base Salary") which shall be paid
commencing on February 1, 2002 on a regular basis in accordance with the
Company's normal payroll procedures and policies together with all the Company's
benefits.
4.2 BONUS. The Board of Directors of the Corporation shall set and
determine each year how bonuses will be awarded based on a criteria agreed to by
the Executive and the corporation. The bonus to be distributed will be
determined by the Compensation Committee in consultation with such persons as
are necessary as soon as possible after the financial results from the year are
available. It will be based primarily upon the target criteria as set at the
beginning of the fiscal year.
4.3 STOCK OPTIONS. The Company agrees to maintain a stock option plan
which provides for shares under the rules and policies of the applicable
governing securities exchange rules for the Company's stock. Such options shall
be offered at the lowest price as options issued to any other Executives at that
time and exercisable at the earliest date permissible under the rules and
policies of the applicable governing securities exchange rules for the Company's
stock.
4.4 PARTICIPATION IN BENEFIT PLANS. The Executive shall be included to
the extent eligible thereunder in any and all plans of the Company providing
general benefits for the Company's Executives, including but not limited to
Group Life Insurance, Hospitalization, Disability, Medical, Dental, Pension,
Profit Sharing, Savings and Stock Bonus Plans. The Executive's participation in
any such plan or program shall be subject to the provisions, rules and
regulations applicable thereto. If for any reason the Executive cannot
participate in such program, his compensation will be adjusted in the cash
equivalent.
4.5 EXPENSES. In accordance with the Company's policies established
from time to time, the Company will pay or reimburse the Executive for all
reasonable and necessary out-of-pocket expenses on a basis consistent with prior
practice incurred by him in the performance of his duties under this Agreement,
subject to the presentment of appropriate vouchers.
4.6 VACATION TIME. Executive shall be entitled to take paid vacation
time of up to four (4) weeks per year, in addition to the normal holidays when
the business is closed.
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5.0 COMPENSATION UPON THE TERMINATION OF THE EXECUTIVE'S EMPLOYMENT.
The Executive commenced working with the company on April 12, 1993 and has been
continuously employed to this date. In the event that the Executive's employment
is terminated then:
5.1 SEVERANCE WAGES. The Executive is to receive severance compensation
and benefits under the terms of this Agreement, the compensation and bonus shall
be defined as 2 months per year up to 24 months calculated from the date the
Executive started his employment with the Company with a minimum of 6 months
salary as defined in Section 4.1 of this Agreement and any amendment to this
Agreement as approved by the parties.
5.2 SEVERANCE BENEFITS. In the event of termination the Executive may
receive benefits for the length of time as calculated in 5.1 provided such
benefits are funded and provided by a third party pursuant to a benefit contract
which the Company has contributed to for the benefit of the employees even
though the Executive is no longer employed by the company.
5.3 SEVERANCE ON DISABILITY. In the event that the Executive is
terminated pursuant to Section 8.1 (disability) and the Executive is entitled to
receive the disability insurance benefits through his employment with the
Company as set out in section 5.2 and the disability insurance benefits cease
prior to the time as set out in paragraph 5.1 then the Company will pay the
Executive his salary as set out in paragraph 4.1. All benefits set out in
section 4.4 that are not covered under the disability insurance and are covered
under the terms of the contract the Company has with the benefit provider shall
be paid for by the Company to the benefit of the Employee until the end of the
time period set out in section 5.1. If such benefits are not covered in the
contract then the Company will pay the same directly to the Executive or
pursuant to the Executive's direction to the provider of such coverage. Any
options shall continue until they expire or such shorter period of time as is
required under securities legislation in Washington State and The United States
of America.
5.4 SEVERANCE ON DEATH. In the event the Executive's employment is
terminated pursuant to Section 8.2 (death), the Executive's beneficiary or a
beneficiary designated by the Executive in writing to the Company, or in the
absence of such beneficiary, the Executive's estate, shall be entitled to
receive the Group Life Insurance which are part of the Company benefits and in
the absence of any group life insurance or other life insurance benefits
contributed to or organized by the Company then the estate of the executive
shall receive the amounts set out in 5.1 and those that may be payable to the
estate under 5.2. Any options shall continue to their expiry date or such
shorter period of time as is required under securities legislation in Washington
State and The United States of America.
5.5 SEVERANCE ON TERMINATION FOR CAUSE. In the event that the
Executive's employment is terminated pursuant to Sections 8.3 (termination for
cause), then he shall not be entitled to any compensation other than his then
current Base Salary which has accrued and
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any benefits set out in 5.1 calculated only to the date of termination. In the
event that Executive's employment is terminated pursuant to Section 8.4
(resignation), he shall be entitled to his then current Base Salary, any
benefits pursuant to Clause 5.2 to the date of termination only and any bonus,
if such, is accrued or calculated monthly through to the date of termination.
5.6 SEVERANCE ON TERMINATION WITHOUT CAUSE. In the event the Executive
is terminated by the Company pursuant to Section 8.5 (Termination Without
Cause), the Executive shall receive severance as defined in Section 5.1 and 5.2
of this Agreement.
5.7 PAYMENT OF SEVERANCE. All payments required to be made by the
Company to the Executive pursuant to this Section 5 shall be paid in the manner
and at the times specified in Section 4.1 hereof. Any notice given to the
Executive pursuant to Section 8 shall be counted as part of the time calculated
in 5.1 and the payments of benefits set out in 5.2.
6.0 CONFIDENTIAL INFORMATION. Except as permitted or directed by the
Company's Board, the Executive shall not during the term of his employment under
this Agreement or at any time thereafter divulge, furnish, disclose or make
accessible (other than in the ordinary course of the business of the Company) to
anyone for use in any way any confidential or secret knowledge or information of
the Company which the Executive has acquired or become acquainted with or will
acquire or become acquainted with prior to the termination of the period of his
employment by the Company (including employment by the Company prior to the date
of this Agreement), whether developed by himself or by others, concerning any
trade secrets, confidential or secret designs, processes, formulae, software or
computer programs, plans, devices or material (whether or not patented or
patentable, copyrighted or copyrightable) directly or indirectly useful in any
aspect of the business of the Company, any confidential customer or supplier
lists of the Company, any confidential or secret development or research work of
the Company, price lists, know how, forecasts, or any other confidential, secret
or non-public aspects of the business of the Company. The Executive acknowledges
that the above-described knowledge or information constitutes a unique and
valuable asset of the Company acquired at great time and expense by the Company,
and that any disclosure or other use of such knowledge or information other than
for the sole benefit of the Company would be wrongful and would cause
irreparable harm to the Company. Both during and after the term of this
Agreement, the Executive will refrain from any acts or omissions that would
reduce the value of the use of such knowledge or information to the Company. The
foregoing obligations of confidentiality, however, shall not apply to any
knowledge or information which is now published or which subsequently becomes
generally publicly known, other than as a direct or indirect result of the
breach of this Agreement by the Executive.
7.0 NON COMPETITION. The Executive agrees that during the term of this
Agreement, he will not, directly or indirectly, assist or encourage any other
person in carrying out, directly or indirectly, any activity that would be
prohibited by the above provisions of this Section, if such activity were
carried out by the Executive, either directly or indirectly, and in
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particular the Executive agrees that he will not, directly or indirectly, induce
any employee of the Company to carry out, directly or indirectly, any such
activity.
7.1 The Executive agrees not to directly or indirectly or otherwise
assist, encourage any person to be involved in any manner to invest or promote
any business or activity of a similar nature if the Executive has terminated
this Agreement pursuant to Sections 8.1, 8.4 or 8.6 of this Agreement for a
period of ONE (1) YEAR or for the length of the severance pay, whichever is the
longer, from the date of termination.
8. TERMINATION PRIOR TO EXPIRATION OF THE TERM.
8.1 DISABILITY. The Executive's employment shall terminate upon the
Executive's becoming totally or permanently disabled for a period of six (6)
months or more. For purposes of this Agreement, the term "totally or permanently
disabled" or "total or permanent disability" means Executive's inability on
account of sickness or accident, whether or not job-related, to engage in
regularly or to perform adequately his assigned duties under this Agreement. The
Board of Directors shall determine, acting reasonably and bona fide, whether the
Executive can engage in regularly or perform adequately his assigned duties
using the reports of doctors and such other information as may be helpful. The
Board may seek such advice as it deems necessary to make such determination.
8.2 DEATH OF EXECUTIVE. The Executive's employment shall terminate
immediately upon the death of Executive.
8.3 TERMINATION FOR CAUSE. The Company may terminate the Executive's
employment at any time for "Cause" (as hereinafter defined) immediately upon
written notice to Executive. Such written notice shall set forth with reasonable
specificity the Company's basis for such termination. As used herein, the
term "Cause" shall mean that the Executive shall have (i) in the reasonable
judgment of the Board of Directors committed a criminal act or an act of fraud,
embezzlement, breach of trust or other act of gross misconduct, (ii) wilfully
violated written corporate policy or rules of the Company, or (iii) in the
reasonable judgment of the Board of Directors, has wilfully refused to follow
the reasonable written directions given by the Board of Directors from time to
time or breached any covenant or obligation under this Agreement or other
agreement with the Company.
8.4 RESIGNATION. The Executive's employment shall be terminated on the
earlier of the date that is one (1) month following the written submission of
the Executive's resignation to the Board or the earlier date such resignation is
accepted by the Board.
8.5 TERMINATION WITHOUT CAUSE. The Company may terminate the
Executive's employment without cause upon written notice to the Executive.
Termination "without cause" shall mean termination of employment on any basis
other than termination of Executive's employment hereunder pursuant to Sections
8.1, 8.2, 8.3 or 8.4. Notice by the Company that this Agreement shall not be
renewed as defined in Section 2 herein, shall be defined as
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termination without cause entitling the Executive to compensation as defined in
Section 5.1 and 5.2.
8.6 CHANGE OF CONTROL. Change of control as defined by this Agreement
shall occur (1) if three or more of the current directors of the Company's
parent Company, International Absorbents, Inc. (IAB) are replaced, unless they
are replaced by voluntary resignation, retirement or death, (2) if any
individual or entity obtains more than 20% of the voting common stock of IAB,
but is not currently an officer or director of IAB, (3) if any individual or
entity other than IAB obtains more than 49% of the voting stock of Absorption
Corp. or if all or substantially all of the operating assets of the Company are
sold.
(a) In the event of change of control of the Company, the Executive
shall be entitled to receive all options subject to the provisions of the option
plan in force with the Company at the time and any additional incentive packages
granted, but which have not vested immediately upon the change of control being
completed and all such compensation shall be dealt with in the same manner as
for all other Executives of the Company, unless such Executive has different
terms to his/her contract.
(b) The Executive shall have the option to terminate this contract with
compensation and benefits pursuant to Section 5.1 and 5.2 of this Agreement,
within 180 days of the date on which the change of control takes place.
8.7 SURRENDER OF RECORDS AND PROPERTY. Upon termination of his
employment with the Company, the Executive shall deliver promptly to the Company
all records, manuals, books, blank forms, documents, letters, memoranda, notes,
notebooks, reports, data, tables, calculations or copies thereof, which are the
property of the Company and which relate in any way to the business, products,
practices or techniques of the Company, and all other property, trade secrets
and confidential information of the Company, including, but not limited to, all
documents which in whole or in part contain any trade secrets or confidential
information of the Company, which in any of these cases are in his possession or
under his control.
9.0 ASSIGNMENT. This Agreement shall not be assignable, in whole or in
part, by either party without the written consent of the other party. Upon such
assignment by the Company, the Company shall obtain the assignees' written
agreement enforceable by Executive to assume and perform, from and after the
date of such assignment, the terms, conditions and provisions imposed by this
Agreement upon the Company. After any such assignment by the Company and such
written agreement by the Assignee, the Company shall be discharged from all
further liability hereunder and such assignee shall thereafter be deemed to be
the Company for the purposes of all provisions of this Agreement including this
Section 9. It is agreed by both parties to this Agreement that in the case of a
change of control of the Company as defined in Section 8.6 of this Agreement,
that this Agreement shall be automatically assigned to the new controlling
entity.
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10. INDEMNIFICATION. The Company shall indemnify Executive as provided
in the Company's Bylaws.
10.1 DIRECTORS AND OFFICERS INSURANCE. The company shall maintain
Directors and officers insurance as decided by the Board of Directors from time
to time required to protect the Executive from claims made against him as a
result of his duties and performance of his employment with the Company.
11. MISCELLANEOUS.
11.1 GOVERNING LAW. This Agreement is made under and shall be governed
by and construed in accordance with the laws of the State of Washington.
11.2 WITHHOLDING TAXES. The Company may withhold from any benefits
payable under this Agreement all federal, provincial, state, city or other taxes
as shall be required pursuant to any law or governmental regulation or ruling.
11.3 AMENDMENTS. No amendment or modification of this Agreement shall
be deemed effective unless made in writing signed by the parties hereto.
11.4 NO WAIVER. No term or condition of this Agreement shall be deemed
to have been waived nor shall there be any estoppel to enforce any provisions of
this Agreement, except by a statement in writing signed by the party against
whom enforcement of the waiver or estoppel is sought. Any written waiver shall
not be deemed a continuing waiver unless specifically stated, shall operate only
as to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future or as to any act other than that
specifically waived.
11.5 SEVERABILITY. To the extent any provision of this Agreement shall
be invalid or unenforceable, it shall be considered deleted here from and the
remainder of such provision and of this Agreement shall be unaffected and shall
continue in full force and effect. In furtherance and not in limitation of the
foregoing, should the duration or geographical extent of, or business activities
covered by any provision of this Agreement be in excess of that which is valid
and enforceable under applicable law, then such provision shall be construed to
cover only that duration, extent or activities which may validly and enforceably
be covered. The Executive acknowledges the uncertainty of the law in this
respect and expressly stipulates that this Agreement shall be given the
construction which renders its provisions valid and enforceable to the maximum
extent (not exceeding its express terms) possible under applicable law.
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11.6 SURVIVAL. Sections 6, 7 and 9 shall survive termination of this
Agreement.
11.7 ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding and agreement between Executive and Company with respect to the
transactions contemplated herein and supersedes any and all prior or
contemporaneous oral or written communications with respect to the subject
matter hereof, all of which are merged herein. It is expressly understood and
agreed that, there being no expectations to the contrary between the parties
hereto no usage of trade or other regular practice or method of dealing between
the parties hereto shall be used to modify, interpret, supplement or alter in
any manner the express terms of this Agreement or any part hereof. This
Agreement shall not be modified, amended or in any way altered except by an
instrument in writing signed by both of the parties hereto.
IN WITNESS WHEREOF, the parties have executed and sealed this Agreement
as of the day and year set forth above.
ABSORPTION CORP.
By: /S/ XXXXXX XXXXX
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Title: President/Chairman
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XXXXX XXXXXXXX
/S/ XXXXX XXXXXXXX
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ATTEST:
/S/ XXXXX XXXXXX
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