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EXHIBIT 10.05
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered
into this First day of September, 1999, by and between FIBR-PLAST CORP., an
Oklahoma corporation (the "Company") and XXXXX X. XXXX ("Executive").
W I T N E S S E T H:
WHEREAS, Executive is currently employed by the Company as its
Vice-President; and
WHEREAS, the Company and Executive desire to continue the employment of
the Executive by the Company on the terms and conditions hereinbelow set forth;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of such is hereby acknowledged by the Executive and the
Company, the Company and Executive hereby agree as follows:
1. Employment.
(a) Agreement to Employ. Upon the terms and subject to the
conditions of this Agreement, the Company shall employ Executive, and Executive
hereby agrees to accept employment by the Company.
(b) Term of Employment. Unless terminated as provided in
Paragraph 5.(a) hereof, the Company shall employ Executive pursuant to the terms
of this Agreement for the period commencing on the date hereof (the
"Commencement Date") and ending five years thereafter. The period during which
Executive remains employed by the Company pursuant to this Agreement (as same
may be amended or modified from time to time in accordance herewith) shall be
referred to as the "Employment Period."
2. Position and Duties. During the Employment Period, the Executive
shall serve as Vice-President of the Company and shall have the duties,
responsibilities and obligations customarily assigned to individuals serving as
Vice-President of comparable companies and such other duties, responsibilities
and obligations not inconsistent with the position of Executive with the Company
as may be specified by the Board of Directors of the Company (the "Board") from
time to time. The Executive shall devote at least 90% of his time to the
services required of the Executive hereunder, except for vacation time and
authorized periods of absence due to sickness, personal injury or other
disability, and the Executive shall use the Executive's best efforts, judgment,
skill and energy to perform such services in a manner consonant with the duties
of the Executive's position and to improve and advance the business and
interests of Company. Executive represents that Executive's employment hereunder
and compliance by Executive with the terms and conditions of this Agreement
shall not conflict with or result in the breach of any agreement to which
Executive is a party or by which Executive may be bound. Notwithstanding
anything in this Employment Agreement to the contrary, the term "Company" as
used in this Paragraph 2 shall refer to FIBR-PLAST CORP., an
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Oklahoma corporation, and any subsidiaries thereof which now exist or may exist
during the Employment Period.
3. Compensation.
(a) Base Salary. During the Employment Period, the Company
shall pay the Executive a base salary at the annual rate of $52,000. Subsequent
to one year from the date hereof, such salary may be increased only by the
unanimous consent of a Compensation Committee of the Company's Board of
Directors (the "Compensation Committee"), provided that not less than two thirds
of the members of such Committee consist of persons who are neither (i)
otherwise affiliated with the Company or (ii) related to the Executive by blood,
marriage or adoption. Executive's annual base salary payable hereunder is
referred to herein as "Base Salary." The Company shall pay Executive's Base
Salary in equal weekly installments or in such other installments upon which the
Executive and the Company may agree.
(b) Annual Incentive Compensation. Upon the unanimous consent
of the Compensation Committee which shall be composed of members as described in
Paragraph 3.(a) above, the Executive shall be entitled to receive an annual
bonus in a maximum amount of 25% of the Company's net income for each year
during the Employment Period. For purposes hereof, net income shall be computed
in accordance with generally accepted accounting principals, consistently
applied.
4. Benefits and Expenses.
(a) Benefits. During the Employment Period, the Executive
shall be eligible to participate in each pension, deferred compensation or
welfare benefit plan sponsored or maintained from time to time by the Company,
if any, including without limitation each profit sharing, retirement or savings
plan or program, and each group life, hospitalization, medical, dental, health,
accident or disability insurance or similar plan or program of the Company, in
each case, whether now existing or established hereafter, to the extent that the
Executive is eligible to participate in any such plan or program in accordance
with the Company's policies applicable to employees and the generally applicable
provisions of such plans and programs. Notwithstanding the foregoing, the
Executive and his family shall also be entitled to continue to participate in
the insurance policies that are now being paid for by the Company and the
Executive shall be eligible to participate in comparable policies during the
Employment Period.
(b) Vacations. During the Employment Period, Executive shall
be entitled to up to four weeks of paid vacation annually and shall also be
entitled to receive such perquisites as may be provided by the Company in
accordance with the then current policies and practices of the Company.
(c) Business Expenses. During the Employment Period, the
Company shall pay or reimburse the Executive for all authorized expenses
incurred or paid by the Executive in the performance of the Executive duties
hereunder, including the use of a cellular telephone, upon
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presentation of expense statements or vouchers and such other information as the
Company may require and in accordance with the generally applicable policies and
procedures of the Company.
(d) Automobile. The Company shall provide the Executive with
the use of, and insurance on, a leased automobile.
5. Termination of Employment.
(a) Early Termination of the Employment Agreement.
Notwithstanding the provisions of Paragraph 1.(b) hereof, the Employment Period
shall end upon the earliest to occur of:
(1) the Executive's death; or
(2) Termination Due to Disability; or
(3) Termination for Cause
(b) Definitions. For the purposes of Paragraph 5 of this
Agreement, capitalized terms shall have the following meanings:
(1) "Termination for Cause" means a termination of
the Executive's employment by Company due to:
(A) the Executive's conviction of a felony
or the entering by the Executive of a plea of nolo contendere to a
felony;
(B) the Executive's gross negligence,
dishonesty, malfeasance or misconduct in connection with the
Executive's employment hereunder;
(C) Refusal by the Executive, in breach of
this Agreement, to perform the duties, responsibilities or obligations
assigned to the Executive pursuant to the terms hereof;
(D) Any intentional violation by the
Executive of any federal or state law, rule or regulation applicable to
the Company under circumstances in which a determination is made by the
Company, in the exercise of the reasonable judgement of the Company,
that such violation will have a material adverse affect upon the
business or reputation of the Company; or
(E) Any breach by the Executive of any
covenant contained in Paragraph 6 of this Agreement.
(2) "Termination Due to Disability" means a
termination of the Executive's employment by Company because the
Executive has been incapable of fulfilling the positions, duties,
responsibilities and obligations set forth in this Agreement because of
physical, mental
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or emotional incapacity resulting from injury, sickness or disease for
a period of: (A) at least three consecutive months; or (B) more than
120 days in any twelve month period. Any question as to the existence,
extent or potentiality of the Executive's disability upon which the
Executive and Company cannot agree shall be determined by a qualified,
independent physician selected by the Company and acceptable to both
the Company and the Executive or, in the event of the Executive's
mental or emotional incapacity, the Executive's legal representative.
The determination of any such physician shall be final and conclusive
for all purposes of this Agreement.
6. Noncompetition and Confidentiality.
(a) Noncompetition. During the Employment Period and during
the twelve month period following the Employment Period (the "Restriction
Period"), the Executive shall not become associated with any entity, whether as
a principal, partner, employee, consultant or shareholder (other than as a
holder of not in excess of five percent of the outstanding voting shares of any
publicly traded company), that is in direct competition with Company in any area
of the United States.
(b) Confidentiality. Without the prior written consent of the
Company, other than as shall be necessary or advisable in the ordinary course of
the Company's business, except to the extent required by an order of a court
having competent jurisdiction or under subpoena from an appropriate governmental
agency, the Executive shall not disclose any trade secrets, customer lists,
drawings, designs, information regarding product development, marketing plans,
sales plans, manufacturing plans, management organization information (including
data and other information relating to members of management), operating
policies or manuals, business plans, financial records, packaging design or
other financial, commercial, business or technical information relating to the
Company or information designated as confidential or proprietary that the
Company may receive belonging to suppliers, customers or others who do business
with the Company (collectively "Confidential Information") to any third person,
unless such Confidential Information has been previously disclosed to the public
by the Company or is in the public domain (other than by reason of the
Executive's breach of this Paragraph 6.(b). The provisions contained in this
paragraph shall not be construed to prohibit the use by the Executive of the
Executive's knowledge, experience and other business talents developed over the
years as an executive involved in business similar to the business of the
Company.
(c) Company Property. Promptly following the Executive's
termination of employment, the Executive shall return to the Company all
property of the Company and all copies thereof in the Executive's possession or
under the Executive's control, including without limitation all Confidential
Information, in whatever media.
(d) Non-Solicitation of the Executives. During the Employment
Period and the Restriction Period, the Executive shall not, directly or
indirectly, induce any employee of the Company to terminate employment with
Company, and shall not, directly or indirectly, either individually or as owner,
agent, employee, consultant or otherwise, employ or offer employment to any
person who is or was employed by the Company, unless such person shall have
ceased to be employed by Company for a period of at least one year.
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(e) Injunctive Relief with Respect to Covenants. The Executive
acknowledges and agrees that the covenants and obligations of the Executive with
respect to noncompetition, nonsolicitation, confidentiality and the Company's
property relate to special, unique and extraordinary matters and that a
violation of any of the terms of such covenants or obligations will cause the
Company irreparable injury for which adequate remedies may not be available at
law. Therefore, the Executive agrees that the Company shall be entitled to an
injunction, restraining order or other equitable relief (without the requirement
to post bond therefor) restraining the Executive from committing any violation
of the covenants or obligations contained in this Paragraph 6. These injunctive
remedies are cumulative and are in addition to any other rights and remedies
Company may have at law or in equity. In connection with the foregoing
provisions of this Paragraph 6, the Executive represents that the Executive's
economic means and circumstances are such that such provisions will not prevent
the Executive from providing for the Executive and the Executive's family on a
basis satisfactory to the Executive.
7. Miscellaneous.
(a) Survival. The provisions of Paragraphs 5, 6 and 7.(l)of
this Agreement shall survive the termination hereof, whether such termination
shall be by expiration of the Employment Period on the last day thereof
specified in Paragraph 1.(b) or by early termination of the Employment Period
pursuant to Paragraph 5.
(b) Binding Effect. This Agreement shall be binding upon and
shall inure to the benefit of the Company and any person or entity that succeeds
to the interest of the Company (regardless of whether such succession occurs by
operation of law or otherwise). This Agreement shall also inure to the benefit
of the Executive's heirs, executors, administrators and legal representatives.
(c) Assignment. Neither this Agreement nor any of the rights
or obligations hereunder shall be assigned or delegated by either party hereto
without the prior written consent of the other party.
(d) Entire Agreement. This Agreement supersedes any and all
prior agreements between the parties hereto and constitutes the entire agreement
between the parties hereto with respect to the matters referred to herein. No
other agreement relating to the terms of the Executive's employment by the
Company, oral or otherwise, shall be binding between the parties unless it is in
writing and signed by the party against whom enforcement is sought. There are no
promises, representations, inducements or statements between the parties
relating to the terms of the Executive's employment by the Company, other than
those that are expressly contained herein.
(e) Severability; Reformation. In the event that one or more
of the provisions of this Agreement shall become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not be affected thereby. In the
event that any of the provisions of Paragraphs 6.(a) through 7.(d) are not
enforceable in accordance with the terms of those paragraphs, respectively, the
Executive and the Company agree that such
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paragraph(s) shall be reformed to make such paragraph(s) enforceable in a manner
that provides the Company with the maximum rights permitted at law.
(f) Waiver. Waiver by any party hereto of any breach or
default by the other party or any of the terms of this Agreement shall not
operate as a waiver of any other breach or default, whether similar to or
different from the breach or default waived. No waiver of any provision of this
Agreement shall be implied from any course of dealing between the parties hereto
or from any failure by either party hereto to assert such party's rights
hereunder on any occasion or series of occasions.
(g) Notices. Any notice required or desired to be delivered
under this Agreement shall be made in writing; shall be delivered by courier
service, by registered mail, return receipt requested, or by facsimile; shall be
effective upon such delivery by the party to which such notice shall be
directed; and shall be addressed as follows (or to such other address as the
party entitled to notice shall hereafter designate in accordance with the terms
hereof):
If to Company: If to the Executive:
FIBR-PLAST CORP. XXXXX X. XXXX
0000 X. XXXXXXX, XXXXX 000 3225 X. XXXXXXX, SUITE 100
TULSA, OK. 74135 XXXXX, XX. 00000
(h) Amendments. This Agreement may not be altered, modified or
amended, except by a written instrument signed by each of the parties hereto.
(i) Headings. Headings to paragraphs in this Agreement are for
the convenience of the parties only and are not intended to be part of or to
affect the meaning or interpretation hereof.
(j) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(k) Withholding. Any payments provided for herein shall be
reduced by any amounts required to be withheld by the Company from time to time
under applicable federal, state or local income or employment tax laws or
similar statutes or other provisions of law then in effect.
(l) Governing Law. This Agreement shall be governed by the
laws of the State of Oklahoma without reference to principles or conflicts or
choice of law under which the law of any other jurisdiction would apply.
(m) Venue. Any suit, action or proceeding with respect to this
Agreement shall be brought in the courts of Tulsa County in the State of
Oklahoma or in the U.S. District Court for the Northern District of Oklahoma.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer and the Executive has hereunto set the
Executive's hand as of the day and year first above written.
FIBR-PLAST CORP.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
President
/s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
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