XXXXXXXX TECHNOLOGIES, INC.
EMPLOYMENT AGREEMENT
THIS IS AN AGREEMENT, effective as of December 1, 1996, by and between
XxxxxXxx Technologies, Inc., a Delaware corporation (the "Company"), and Xxxxxx
X. Xxxxx (the "Employee").
WHEREAS, the Company desires to employ the Employee and the Employee
desires to be employed by the Company;
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which consideration are hereby acknowledged, the parties agree as
follows:
1. Employment
The Company hereby employs the Employee, and the Employee
hereby accepts employment with the Company, upon the terms and conditions
hereinafter set forth.
2. Duties
The Employee shall serve as President of the Company's Tire
Recycling Division. In such capacity, the Employee will report to the Chief
Executive Officer of the Company and will perform such duties on behalf of the
Company consistent with such office as may be assigned to him from time to time
by the Chief Executive Officer of the Company. The Employee agrees to abide by
the rules, regulations, instructions, personnel practices and policies of the
Company and any changes therein which may be adopted from time to time by the
Board of Directors of the Company.
3. Term
Unless sooner terminated as provided below, the term of the
Employee's employment under this Agreement will be three years from the date
first above written (such period, as it may be extended, is referred to in this
Agreement as the "Employment Period"). Unless notice of non-renewal is given by
either party at least thirty (30) days prior to the end of such period, the
Employment Period will continue thereafter for successive 12-month periods. Upon
the Company's giving thirty (30) days notice as herein described, the Employee
may seek alternative employment during such notice period; provided, however,
that the Employee shall be required to continue to perform such duties on behalf
of the Company as are specified in this Agreement.
4. Extent of Services
During the term of his employment, the Employee will devote
his full time and best efforts to the performance of his duties under this
Agreement. Under no circumstances will the Employee knowingly take any action
contrary to the best interests of the Company.
5. Compensation
In consideration of employment and the services rendered by
the Employee under this Agreement, the Company will pay the Employee
compensation as follows:
5.1 Base Salary. A base salary ("Base Salary") of One Hundred
and Twenty Five Thousand ($125,000.00) per year for the term of this Agreement,
payable in accordance with the Company's ordinary payroll practices. Any
increases in Base Salary shall be in the sole discretion of the Board of
Directors.
5.2 Incentive Compensation. The Employee will be entitled to
participate, on the same basis as the other executive officers of the Company,
in any incentive compensation plan that may be established by the Company (the
"Plan"). The terms of the Plan, together with the extent and terms of the
Employee's participation in the Plan, will be established by the Company's Board
of Directors, in its sole discretion.
6. Other Benefits
6.1 Additional Compensation and Benefits. The Employee shall
be entitled to receive the same health, disability and other benefits as are
offered by the Company to all full-time employees from time to time. The
Employee will be entitled to such additional compensation, bonuses or benefits
as the Company's Board of Directors, in its sole discretion, may decide.
6.2 Expenses. The Company will, upon substantiation thereof,
reimburse the Employee for all reasonable expenses of types authorized by the
Board of Directors of the Company in the ordinary course of business and
incurred by the Employee in connection with the Company's business affairs. The
Employee must regularly submit, for approval to the Chief Financial Officer of
the Company, a statement of these expenses and will comply with such other
accounting and reporting requirements as the Company may from time to time
establish. Approved and substantiated expenses shall be reimbursed by the
Company within 30 days of submittal for payment.
6.2 Life Insurance. The Company shall provide the Employee
with life insurance coverage equal to three (3) times his annual salary, or,
shall reimburse the Employee for the premium cost of such life insurance
coverage should it be purchased by the Employee independently.
7. Termination
7.1 By the Company. The Company may terminate the Employee's
employment with the Company (a) upon the expiration of the Employment Period in
accordance with the terms of this Agreement, (b) at any time without notice for
"cause", as defined below, (c) at any time without cause upon thirty (30) days'
advance notice, subject to Section 7.4 below and subject to the requirement that
the company pay to the Employee the amount set forth in Section 7.4 herein, (d)
upon the death of the Employee, or (e) in the event of the Employee's disability
preventing him from rendering services to the Company consistent with his duties
hereunder for a period of six (6) consecutive months.
7.2 By the Employee. The employee may terminate his employment
with the Company upon the expiration of the Employment Period in accordance with
the terms of this Agreement or at any time upon thirty (30) days' advance
notice.
7.3 Cause. For the purposes of this Section 7, "cause" means:
(a) engaging in any crime or offense involving money or
other property of the Company, or
(b) conviction of a felony, or
(c) continuing, repeated willful failure or refusal to
perform specific written directives of the Company's
Board of Directors consistent with the Employee's
duties after notice that such failure will be deemed
to constitute cause for termination and a reasonable
opportunity to cure such failure or refusal, or
(d) excessive absenteeism, or
(e) owning, engaging in, conducting, managing, operating,
participating in, being employed by, being connected
in any manner whatsoever with, or rendering services
or advice to (whether for compensation or without
compensation), any other person or business entity
which is engaged in the same business as conducted by
the Company at the time, provided that nothing shall
restrict the Employee's right to invest in the
securities (not to exceed 1% of the outstanding
securities of any class) of any publicly-held
corporation in the management of which the Employee
does not participate.
7.4 Amounts Payable Upon Termination. Upon termination of the
Employee's employment with the Company in accordance with clause (a), (b), (d)
or (e) of Section 7.1, all compensation and benefits under this Agreement will
cease, effective the date of termination. Upon termination of the Employee's
employment with the Company in accordance with clause (c) of Section 7.1, the
Employee shall be paid twelve (12) months' Base Salary. Other than as
specifically set forth in Section 7.1 and this Section 7.4, the Employee will
not be entitled to receive any compensation or benefits after termination of his
employment with the Company.
8. Non-Disclosure; Non-Competition
8.1 Proprietary Information.
(a) The Employee agrees that all information and
know-how, whether or not in writing, of a private, secret or confidential nature
concerning the Company's business or financial affairs (collectively,
"Proprietary Information") is and will be the exclusive property of the Company.
By way of illustration, but not limitation, Proprietary Information includes
contemplated or planned advertising or public relations plans, methods or
techniques; inventions, products, projects, developments, compositions, plans,
research data, financial data, manufacturing processes or techniques, trade
secrets, personnel data, computer programs, designs, and client and supplier
lists, whether or not copyrightable, trademarkable or licensable. The Employee
will not disclose any Proprietary Information to others outside the Company or
use the Proprietary Information for any unauthorized purposes without written
approval by an officer of the Company, either during or after his employment,
unless and until such Proprietary Information has become public knowledge
without the fault of the Employee.
(b) The Employee agrees that all files, letters,
memoranda, reports, records, data sketches, drawings, notebooks, notes,
specifications, programs, computer program listings, or other written,
photographic, or other tangible material containing Proprietary Information,
whether created by the Employee or others, which comes into his custody or
possession, is the exclusive property of the Company, to be used by the Employee
only in the performance of his duties for the Company.
(c) The Employee agrees that his obligation not to
disclose or use information, know-how and records of the types set forth in
Paragraphs (a) and (b) above also extends to such types of information,
know-how, records and tangible property of customers of the Company or suppliers
to the Company or other third parties who may have disclosed or entrusted the
same to the Company or to the Employee in the course of the Company's business.
8.2 Developments
(a) The Employee will make full and prompt disclosure
to the Company of all inventions, improvements, ideas, concepts, approaches,
discoveries, methods, developments, software, and works of authorship, whether
or not copyrightable, trademarkable or licensable, which are created, made,
conceived or reduced to practice by the Employee or under his direction or
jointly with others in connection with his employment by the Company, whether or
not during normal working hours or on the premises of the Company (all of which
are collectively referred to in this Agreement as "Developments").
(b) The Employee agrees to cooperate fully with the
Company, both during and after his employment with the Company, with respect to
the procurement, maintenance and enforcement of copyrights and trademarks (both
in the United States and foreign countries) relating to Development. The
Employee will sign all papers, including, without limitation, copyright
applications, trademark applications, patent applications, declarations, oaths,
formal assignments, assignments of priority rights and powers of attorney, which
the Company may deem necessary or desirable in order to protect its rights and
interest in any Developments.
8.3 Non-Competition.
(a) During the term of the Employee's employment with
the Company and for a period of six (6) months after that employment is
terminated, for any reason, by the Company or the Employee, the Employee will
not, without the Company's prior written approval, directly or indirectly:
(i) recruit, solicit or knowingly induce, or
attempt to induce, any employee or consultant of the company to terminate his or
her employment or consulting relationship with, or otherwise cease his
relationship with, the Company; or
(ii) solicit, divert or take away, or
attempt to divert or to take away, the business or patronage of any of the
clients, customers or accounts, or prospective clients, customers or accounts of
the Company. For purposes of this Agreement, a prospective client, customer or
account is any individual or entity whose business is solicited by the Company,
proposed to be solicited by the Company, or who approaches the Company, with
respect to possibly becoming a client, customer or account during the Employment
Period; or
(iii) engage (whether for compensation or
without compensation) as an individual proprietor, partner, stockholder,
officer, employee, director, joint venture, investor, lender, or in any other
capacity whatsoever (otherwise than as the holder of not more than one percent
(1%) of the total outstanding stock of a publicly-held company), in any business
activity which competes with any business then being conducted by the Company or
any business proposed to be conducted by the Company at the time of the
termination of the Employee's employment with the Company.
(b) If any restriction set forth in this Subsection
8.3 is found by any court of competent jurisdiction to be unenforceable because
it extends for too long a period of time or over too great a range of activities
or in too broad a geographic area, it shall be interpreted to the extent only
over the maximum period of time, range of activities or geographic areas to
which it may be enforceable.
(c) The restrictions contained in this Subsection 8.3
are necessary for the protection of the business and goodwill of the Company and
are considered by the Employee to be reasonable for this purposes. The Employee
agrees that any breach of this Subsection 8.3 will cause the Company substantial
and irrevocable damage and, therefore, in the event of any such breach, in
addition to such other remedies which may be available, the Company will have
the right to seek specific performance and injunctive relief.
8.4 Survival of Obligations. The obligations of the Employee
under this Section 8 will survive the termination of this Agreement.
9. Notices.
All notices under this Agreement must be in writing and must
be delivered by hand or mailed by certified or registered mail, postage prepaid,
return receipt requested, to the parties as follows:
If to the Company: XxxxxXxx Technologies, Inc.
0 Xxxxxxx Xxxx, Xxxxxxxx X.
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
with a copy to: Xxxx X. Xxxxxxxx, Esq.
Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
If to the Employee: To the address set forth below the signature
of the Employee;
or to such other address as is specified in a notice complying with this Section
9. Any such notice is deemed given on the date delivered by hand or three days
after the date of mailing.
10. Other Agreements.
The Employee hereby represents that he is not bound by the
terms of any agreement with any previous employer or other party to refrain from
competing, directly or indirectly, with the business of such previous employer
or any other party. The Employee further represents that his performance of all
the terms of this Agreement and as an employee of the Company does not and will
not breach any agreement to keep in confidence proprietary information,
knowledge or data acquired by him in confidence or in trust prior to his
employment with the Company.
11. Miscellaneous.
11.1 Modification. This Agreement constitutes the entire
Agreement between the parties with regard to the subject matter hereof,
superseding all prior understandings and agreements, whether written or oral.
This Agreement may not be amended or revised except by a writing signed by the
parties.
11.2 Successors and Assigns. This Agreement is binding upon
the inures to the benefit of both parties and their respective successors and
assigns, including any corporation with which or into which the Company may be
merged or which may succeed to its assets or business, although the obligations
of the Employee are personal and may be performed only by him.
11.3 Captions. Captions have been inserted in this Agreement
solely for convenience of reference, and in no way define, limit or affect the
scope or substance of any provision of this Agreement.
11.4 Severability. The provisions of this Agreement are
severable, and invalidity of any provision does not affect the validity of any
other provision. In the even that any court of competent jurisdiction determines
that any provision of this Agreement or the application thereof is unenforceable
because of its duration or scope, the parties agree that the court in making
such determination will have the power to reduce the duration and scope of such
provision to the extent necessary to make it enforceable, and that the Agreement
in its reduced form is valid and enforceable to the full extent permitted by
law.
11.5 Governing Law. This Agreement is to be construed under
and governed by the laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and
year first above written.
XXXXXXXX TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, Chairman
EMPLOYEE
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Address: 000 Xxx Xxxxx
Xxxxxxx, Xxxxxxxxx 00000
