Exhibit 10.3
EMPLOYMENT AGREEMENT
BETWEEN
CONVERSION TECHNOLOGIES INTERNATIONAL, INC. AND
XXXXX X. XXXXXXXXXXX
THIS AGREEMENT, is made as of the 18th day of November, 1996, between
Conversion Technologies International, Inc., a Delaware corporation (the
"Company") and Xxxxx X. Xxxxxxxxxxx (the "Employee").
WHEREAS, the parties desire to enter into this Agreement simultaneously
with the execution and delivery of an Agreement and Plan of Reorganization (the
"Merger Agreement") relating to the merger (the "Merger") of Octagon, Inc.
("Octagon") with and into a subsidiary of the Company for the purpose of setting
forth the terms and conditions of the employment relationship of the Employee
with the Company effective upon the date of consummation of the Merger
(hereinafter, the "Effective Date");
WHEREAS, the Board of Directors of the Company (the "Board") has approved
and authorized the entry into this Agreement with the Employee;
NOW, THEREFORE, it is agreed as follows:
1. EMPLOYMENT. From the Effective Date, the Employee shall function as Chief
Financial Officer of the Company. The Employee's duties and
responsibilities shall be consistent with the duties of those performed by
a Chief Financial Officer in a Contemporary Public Company (listed on
NASDAQ) and of a similar size and scale. The Employee shall report to the
President and Chief Operating Officer of the Company, but shall have
complete and unhindered access to the Board of Directors and shall serve at
the discretion of the Audit Committee of the Board of Directors. The
Employee shall devote his best efforts to the Company and his position,
which shall include such additional duties as the Board, directly or
through the President of the Company, may from time to time reasonably
direct and that are reasonably consistent with the Employee's education,
experience and background. During the terms of this Agreement, there shall
be no material increase or decrease in the duties and responsibilities of
the Employee other than as provided herein, unless the parties agree
otherwise in writing. During the term of this Agreement, the Employee
shall not be required to relocate.
2. COMPENSATION.
(a) SALARY. Beginning on the Effective Date, the Company agrees to pay
the Employee during the term of this Agreement a salary at an annual
rate equal to $160,000 per year ($13,333.33 per month payable at the
Company's standard payroll periods). The Employee shall not receive
an annual bonus or an incentive
bonus, except as may be provided by the Board. The Employee
acknowledges that any and all deferred compensation, bonuses, accrued
but unused vacation or other compensation earned or otherwise to be
received by the Employee as a result of his employment with Octagon,
will have been received or waived by the Employee prior to the
Effective Date (other than the Merger Shares (as defined below) to be
received by the Employee in the Merger), and the Employee hereby
releases the Company (and, effective as of the Effective Date, Octagon
as a subsidiary of the Company) from any liability in connection
therewith.
(b) ADJUSTMENT IN SALARY. The Employee's salary shall be increased at
the discretion of the Compensation Committee of the Board of Directors
of the Company. The salary of Employee shall not be decreased at any
time during the term of this Agreement unless the Employee agrees
otherwise in writing. Participation in deferred compensation,
discretionary bonuses, retirement and other employee benefit plans and
fringe benefits shall not reduce the salary payable to employee.
3. INSURANCE, RETIREMENT AND EMPLOYEE BENEFIT PLANS: FRINGE BENEFITS,
BUSINESS EXPENSES.
(a) BENEFITS AND PRE-REQUISITES. The Employee shall be entitled to
participate in any plan of the Company relating to stock options,
restricted stock, employee stock purchase or ownership, pension,
thrift, profit sharing, group life insurance, medical coverage,
education, or other retirement or employee benefit plans or
arrangements that the Company has adopted or may adopt for the benefit
of its employees or executive officers. The Employee shall also be
entitled to participate in, or enjoy the benefit of, any other fringe
benefits or perquisites that are now or may be or become applicable to
the Company's executive employees (other than paid life insurance,
which was taken on the life of Xxxxxx Xxxxxxx as a condition to
consummation of the Company's initial public offering). The Employee
shall also be provided with a car allowance in the amount of $600.00
per month.
(b) BUSINESS EXPENSES. During the term of the Employee's employment by
the Company, the Company shall promptly reimburse the Employee for all
reasonable and customary expenses incurred by the Employee in
performing services for the Company, including all expenses of travel
and living expenses while away from home on business or at the request
of and in the service of the Company, provided that such expenses are
incurred and accounted for in accordance with the policies and
procedures establish by the Company.
(c) STOCK GRANT AND OPTIONS. The Employee shall be entitled to
participate in a Board approved stock option incentive program that is
now or may become applicable to the Company's executive employees.
(d) RELOCATION. The Company recognizes that the Employee was required to
relocate from the Virginia area to the Orlando area in order to
perform the duties of the
2
Chairman and Chief Financial Officer of Octagon, Inc. The Employee
will be reimbursed for all reasonable Realtors fees and closing costs
for the sale of the Virginia residence if not sold as of the Effective
Date.
4. TERM. The initial term of this Agreement shall be twelve (12) months from
the Effective Date. This Agreement may not be terminated by the Company
without cause during the first twelve (12) months of the term. Thereafter,
the Company must provide Employee with not less than six (6) months written
notice of intent to terminate the Agreement without cause. This Agreement
shall be automatically renewed for each additional year on each anniversary
date of the Effective Date, unless either party gives contrary written
notice to the other hereto not less than six (6) months before such
anniversary date. The initial term and all such renewal terms are
collectively referred to herein as the term of this Agreement.
5. EMPLOYMENT ESCROW ACCOUNT. The Employee shall deliver 34,560 Merger Shares
(as defined in the Merger Agreement) to the Secretary of the Company to be
held in escrow (the "Employment Escrow Account"). Six months after the
Effective Date, 5,760 of the Merger Shares shall be released to the
Employee. Thereafter, each month for the next five months, an additional
5,760 Merger Shares shall be released to the Employee. Accordingly, the
Employment Escrow Account shall be terminated one year after the Effective
Date. Merger Shares subject to the Employment Escrow Account may not be
sold, assigned, pledged or hypothecated by the Employee until released;
however the Employee shall be entitled to vote such Merger Shares. Any
dividends or other distribution on such shares shall be placed in the
Employment Escrow Account to be released upon release of the Merger Shares.
6. VOLUNTARY ABSENCES: VACATIONS. The Employee shall be entitled, without
loss of pay, to be absent voluntarily for reasonable period of time from
the performance of the duties and responsibilities under this Agreement.
All such voluntary absences shall count as paid vacation time, unless the
Board otherwise approves. The Employee shall be entitled to an annual paid
vacation of at least four weeks per year or such longer period as the Board
may approve. The timing of paid vacations shall be scheduled in a
reasonable manner by the Employee. The Employee shall not be entitled to
receive compensation in lieu of vacation if he is unable to utilize the
full amount of paid vacation time available to him in any year.
7. TERMINATION OF EMPLOYMENT. The Employee's employment may be terminated
without any breach of this Agreement only under the following
circumstances:
(a) DEATH. The Employee's employment shall terminate upon his death.
(b) DISABILITY. The Company may terminate the Employee's employment
because of Disability. For this purpose, "Disability" shall mean the
inability of the Employee to perform his duties under this Agreement
because of physical illness or incapacity for a continuous period of
six months during which the Employee shall
3
have been absent from his duties under this Agreement on a
substantially full-time basis.
(c) CAUSE. The Company may terminate the Employee's employment for Cause.
For purposes of this Agreement, the Company shall have "Cause" to
terminate the Employee's employment only in the event of (1) the
willful and continued failure by the Employee to substantially perform
his duties hereunder (other than any such failure resulting from the
Employee's inability to perform such duties as a result of physical
illness or incapacity or any such actual or anticipated failure after
the delivery of a Notice of Termination, as defined in Sections 7(e),
by the Employee for Good Reason, as defined, in Section 7(d)(2)),
after delivery to the Employee of a written demand for substantial
performance that specifically identifies the manner in which the
Company believes that the Employee has not substantially performed his
duties and a reasonable opportunity to cure; (2) willful misconduct by
the Employee that causes actual and substantial damage to the business
and operations of the Company, the continuation of which, in the
reasonable judgment of the Board, will continue to substantially and
materially damage the Company; or (3) conviction of the Employee of a
felony. The Employee shall not be deemed to have been terminated for
Cause unless the Employee shall have been provided with (i) not less
than 60 days written notice setting forth the reasons that the Company
believes constitute Cause for the termination of his employment; (ii)
a reasonable opportunity to be heard by the Board, after not less than
10 days following the Company's 60 day notice; and (iii) a Notice of
Termination, as defined in Section 7(e), from the Board finding that,
in the reasonable good faith opinion of the Board, Cause for the
termination exists and specifying the particulars thereof in
reasonable detail.
(d) TERMINATION BY THE EMPLOYEE. The Employee may terminate his
employment (a) for Good Reason or (b) for any other reason at any
time, in each case, by giving sixty days prior written notice to the
Company.
For this purpose, "Good Reason" shall mean:
(1) The assignment to the Employee of any duties inconsistent with
the Employee's status as stipulated in Section 1 of this
Agreement or any substantial adverse alteration in the nature or
status of the Employee's responsibilities;
(2) Any change in the Employee's reporting responsibility such that
the Employee is required to report other than to the President
and Chief Operating Officer or the failure of the Employee to
have complete and unhindered access to the Board of Directors or
serve at the discretion of the Audit Committee of the Board of
Directors;
4
(3) Any purported termination of the Employee's employment by the
Company that is not effected pursuant to a Notice of Termination
satisfying the requirements of Sections 7(c) and (e) hereof;
(4) Any other failure by the Company to comply with any material
provision of this Agreement which failure continues for more than
ten days after written notice of such noncompliance from the
Employee; or
(5) Any notice given by the Company to the Employee under Section 4
hereof that this Agreement will not be renewed on any anniversary
date.
(e) NOTICE OF TERMINATION. Any termination of the Employee's employment
by the Company or by the Employee hereto shall be communicated to the
other party by a written Notice of Termination. Any Notice of
Termination given by a party shall specify the particular termination
provision of this Agreement relied upon by such party and shall set
forth in reasonable detail the facts and circumstances relied upon as
providing a basis for the termination under the provision so
specified.
(f) TERMINATION DATE. Termination Date shall mean (1) if the Employee's
employment is terminated by his death, the date of his death; (2) if
the Employee's employment is terminated pursuant to Section 7(b)
hereof, the date specified in the Notice of Termination, which shall
be after the expiration of the six month period specified in that
subsection; (3) if the Employee's employment is terminated by the
Company for Cause, the date specified in the Notice of Termination or
the Board's determination confirming cause as specified in Section
7(c), whichever is later, or (4) if the Employee's employment is
terminated for any other reason, sixty days following the date on
which the Notice of Termination is given.
8. COMPENSATION UPON TERMINATION OF EMPLOYMENT.
(a) TERMINATION FOR CAUSE OR WITHOUT GOOD REASON. If the Employee's
employment is terminated by the Company for Cause, or by the Employee
other than for Good Reason, the Company shall pay the Employee his
salary through the Termination Date and the Company shall have no
further obligation to the Employee hereunder, except with regard to
obligations owed under Section 2 (b) herein and any other benefits to
which Employee may be entitled, as specified in Section 8(c)(4) below.
Any Merger Shares (and any dividends or other distributions made with
respect thereto) still remaining in the Employee Escrow Account on the
Effective Date of termination pursuant to this Section 8(a) shall be
canceled and/or returned to the Company, and the Employee shall have
no rights therein or thereto; provided, however, that such Merger
Shares shall not be canceled (and shall be released to the Employee)
in the event the Employee voluntarily resigns his employment as the
result of the repeated failure by the Company or its
5
executive officers to follow the lawful and reasonable advice of the
Employee with respect to financial reporting and corporate
disclosures; provided further, however, that (i) such failure could
reasonably be expected to have material adverse impact on the Company,
result in a material misstatement or omission or constitute a
violation of law and (ii) the Employee shall have first advised the
Audit Committee of the Board of Directors of such failure.
(b) TERMINATION BECAUSE OF DISABILITY. If the Employee's employment is
terminated by the Company because of Disability under Section 7(b)
hereof, the employee shall be entitled to the benefits of the then
current disability policies of the Company or Octagon, as applicable,
and any Merger Shares then remaining in the Employee Escrow Account
shall immediately be released to the Employee. The Company will
review the Company's disability policies with respect to its senior
executives in good faith with respect to expanded coverage
opportunities that may be available on satisfactory economic terms.
(c) TERMINATION BECAUSE OF DEATH, WITHOUT CAUSE OR WITH GOOD REASON. If
(i) in breach of this Agreement, the Company shall terminate the
Employee's employment other than (a) for cause or (b) because of
Disability or (ii) the Employee shall terminate his employment for
Good Reason (OTHER THAN PURSUANT TO SECTION 7(D)(5)) or because of his
death, then:
(1) The Company shall pay the Employee or his estate his salary
through the Termination Date and all other unpaid and pro rata
amounts to which the Employee is entitled as of the Termination
Date under any compensation plan or program of the Company,
including, without limitation, any incentive performance bonus
and all accrued vacation time - such payments are to be made in a
lump sum on or before the Termination Date.
(2) The Company will release the balance of the Merger Shares held in
the Employment Escrow Account; which shares shall be released to
the Employee or his estate on the Termination Date (unless said
shares have been released at an earlier time pursuant to Section
5 hereof);
(3) The Company shall pay as liquidated damages to the Employee, and
in lieu of any further salary payments hereunder for periods
after the Termination Date, an amount equal to the Employee's
annual salary, specified in Section 2(a) hereof, which amount
shall be paid in a lump sum no later than fifteen (15) days
subsequent to the Termination Date.
(4) In addition to the liquidated damages amounts that are payable to
the Employee, the following shall apply: (A) the Employee shall
continue to participate in, and accrue benefits under, all
retirement, pension, profit sharing, employee stock, ownership,
thrift, and other deferred
6
compensation plans of the Company for the remaining term of this
Agreement as if the termination of employment of the Employee had
not occurred (with Employee being deemed to receive annually for
the purposes of such plans the Employee's then current salary (at
the time of his termination) under Section 2(a) of this
Agreement), except to the extent that such continued
participation and accrual is expressly prohibited by law, or to
the extent such plan constitutes a "qualified plan" under Section
401 of the Internal Revenue Code of 1986, as amended ("the
Code"), by the terms of the plan, in which case the Company shall
provide the Employee a substantially equivalent, unfunded,
nonqualified benefit; (B) the Employee shall be entitled to
continue to receive all other employee benefits and then existing
fringe benefits referred to in Section 3(a) and (b) hereof for
the remaining term of this Agreement as if the termination of
employment had not occurred; (C) the Company shall, on the
Termination Date, establish an irrevocable trust that meets the
guidelines set forth in Rev. Proc. 92-64 published by the
Internal Revenue Service (as the same may be modified or
supplemented from time to time) (the "Trust"), the assets of
which will be held, subject to the claims of creditors of the
Company, solely to provide for the benefits that the Employee is
entitled to under this Section 8(c)(3); and the Company shall
transfer to the Trust an amount sufficient to provide for such
benefits; and (D) all insurance or other provisions for
indemnification, defense or hold-harmless of officers or
directors of the Company that are in effect on the date the
Notice of Termination is sent to the Employee shall continue for
the benefit of the Employee with respect to all of his acts and
omissions while an officer or director as fully and completely as
if such termination had not occurred, and until the final
expiration or running of all periods of limitation against action
while may be applicable to such acts or omissions; and
(5) The liquidation damages amount and other benefits provided for in
this Section 8(c) shall not be reduced by any compensation or
benefits that the Employee may receive for other employment with
the Company.
(d) COST OF ENFORCEMENT. In the event the employment of the Employee is
terminated by the Company because of Disability or without Cause or by
the Employee for Good Reason, and the Company fails to make timely
payment of the amounts owed to the Employee under this Agreement, the
Employee shall be entitled to reimbursement for all reasonable costs,
including attorney's fees, incurred by the Employee in taking action
to collect such amounts or otherwise to enforce this Agreement, plus
interest on such amounts at the rate of one percent above the prime
rate. (defined as the base rate on corporate loans at large U.S.
money center commercial banks as published by the Wall Street Journal,
compounded monthly, for the period from the date of employment
termination until payment is made to
7
the Employee. Such reimbursement and interest shall be in addition to
all rights to which the Employee is otherwise entitled under this
Agreement.
(e) PARACHUTE PAYMENT LIMITATION. If any payment or benefit to the
Employee under this Agreement would be considered a "parachute
payment" within the meaning of Section 280G9(b)(2) of the Code and if,
after reduction for any applicable federal excise tax imposed by
Section 4999 of the Code (the "Excise Tax") and federal income tax
imposed by the Code, the Employee's net proceeds of the amounts
payable and the benefits provided under This Agreement would be less
than the amount of the Employee's net proceeds resulting form the
payment of the Reduced Amount described below, after reduction for
federal income taxes, then the amount payable and the benefits
provided under this Agreement shall be limited to the Reduced Amount.
The "Reduced Amount" shall be the largest amount that could be
received by the Employee under this Agreement such that no amount paid
to the Employee under this Agreement and any other agreement,
contract, or understanding heretofore or hereafter entered into
between the Employee and the Company (the "Other Agreement") and any
formal or informal plan or other arrangement heretofore or hereafter
adopted by the Company for the direct or indirect provision of
compensation to the Employee (including groups or classes of
participants of beneficiaries of which the Employee is a member),
whether or not such compensation is deferred, is in cash, or is
subject to the Excise Tax. In the event that the amount payable to
the Employee shall be limited to the Reduced Amount, then the
Employee shall have the right, in the Employee's sole discretion, to
designate those payments or benefits under this Agreement, any Other
Agreement, and/or any Benefits Plan, that should be reduced or
eliminated so as to avoid having the payment to the Employee under
this Agreement be subject to the Excise Tax.
9. CONFIDENTIALITY. In consideration of the willingness of the Company to
employ the Employee and the compensation to be paid and benefits to be
received therefore, and for other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the Employee agrees
as follows:
(a) THE COMPANY OWNS ALL OF THE EMPLOYEE'S WORK WHICH IS PERFORMED FOR
COMPANY. Company acknowledges that Employee is a full time employee
that work performed by Employee for himself or another employer will
be owned by Company. All improvements, discoveries, inventions,
designs - documents, licenses and patents, or other data devised,
conceived, made, developers, obtained, filed, perfected, acquired, or
first reduced to practice, in whole or in part, or in the regular
course of employment by the Employee during the term of this
Agreement, and related in any way to the business, including
development and research, of the Company or any subsidiary or
affiliate engaged in business substantially similar to that of the
Company shall be promptly disclosed to the Company. The Employee
hereby assigns and transfers to the Company all his right, interest
and title hereto, and such improvements, discoveries, inventions,
8
designs, documents, licenses and patents, or other data shall become
the property of the Company. During the term of this Agreement, and
at any time thereafter, upon request of the Company, the Employee will
join and render assistance in any proceedings and execute any papers
necessary to file and prosecute applications for, and to acquire,
maintain and enforce, letters patent, trademarks, registrations and/or
copyrights, both domestic and foreign, with respect to such
improvements, discoveries, inventions, designs, documents, licenses
and patents, or other data as required for vesting and maintaining
title to same in the Company.
(b) NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. The Employee agrees and
acknowledges that the term "Confidential and Proprietary Information"
shall mean any and all information not in public domain, in any form,
emanating from or relating to the Company or its subsidiaries and
affiliates, including, but not limited to, trade secrets, technical
information, costs, designs, drawings, processes, systems, methods of
operation and procedures, formulae, test data, know-how, improvements,
price lists, financial data, code books, invoices and other financial
statements, computer programs, discs and printouts, sketches, and
plans (engineering, architectural or otherwise), customer lists,
telephone numbers, names, addresses, information about equipment and
processes (including specifications and operating manuals), or any
other compilation of information written or unwritten that is used in
the business of the Company or any subsidiary or affiliate and that
gives the Company or any subsidiary or affiliate any opportunity to
obtain an advantage over competitors of the Company who do not know or
use such information. The Employee agrees and acknowledges that all
Confidential and Proprietary Information, in any form, and all copies
and extracts thereof, is and are and shall remain the sole and
exclusive property of the Company and, upon termination of his
employment with the Company hereby agrees to return to the Company the
originals and all copies of any Confidential and Proprietary
Information provided to or acquired by the Employee during the period
of his employment. Except as ordered by a court of competent
jurisdiction, the Employee expressly agrees never to disclose to any
person (except to other Company employees, and then only on a "need to
know" basis) or entity any Confidential and Proprietary Information
either during the term of this Agreement or at any time after the
termination of his employment, except with the express written
authorization and consent of the Company.
(c) CUSTOMERS INFORMATION. The Employee understands and acknowledges that
each customer of the Company or its subsidiaries or affiliates will
disclose information will be within the Company's control in
connection with the Company's furnishing of services to its customer.
The Employee covenants and agrees to hold such information in the
strictest confidence and shall treat such information in the same
manner as if such information were "Confidential and Proprietary
Information," as defined herein.
9
10. OTHER CONTRACTS. Each party acknowledges that Employee is employed on a
full time basis. The Employee may not accept employment with a third
party or undertake other activities for compensation at any time during the
term of this Agreement which prevent Employee from discharging his duties
hereunder.
11. RESTRICTIVE COVENANT.
(a) The Employee acknowledges and recognizes that during the term
hereof he will be privy to trade secrets and confidential
proprietary information critical to the Business of the Company
and its Affiliates and further acknowledges and recognizes that
the Company would find it extremely difficult to replace the
Employee. Accordingly, if the Employee terminates his employment
without a Good Reason, or the Company terminates the Employee for
Cause, the Employee shall not, during the term hereof and for the
one-year period following termination, (i) directly or indirectly
engage in, represent in any way, or be connected with, any
business (such business being referred to herein as a "Competing
Business") competing with the business of the Company or any of
its Affiliates within any state or country in which the Company
or any such Affiliate transacts business, whether such engagement
shall be as an officer, director, owner, employee, partner,
Affiliate or other participant in any Competing Business, (ii)
assist others in engaging in any Competing business in the manner
described in clause (i) above, (iii) induce any employees of the
Company or any of its Affiliates to terminate their employment
with the Company or any such Affiliate, or to engage in any
Competing Business, or (iv) induce any entity or person with
which the Company or any of its Affiliates has a business
relationship to terminate or alter such business relationship;
provided, however, that nothing contained in this Section 11(a)
shall prevent, restrain or otherwise restrict the Employee from
owning 5% or less of any class of securities of any competitor of
the Company so long as such securities are listed for trade by
NASDAQ in the over-the-counter market or are traded on an
organized securities exchange.
(b) The Company and the Employee expressly acknowledge and agree that
no restrictive covenants will be imposed upon the Employee if the
Employee terminates his employment for Good Reason or the Company
terminates the Employee without Cause. If the Company allegedly
terminates the Employee "For Cause" and the Employee does not
agree with such allegation, no restrictive covenants shall be
imposed upon the Employee unless and until a judicial decision
finds that the Company was justified in terminating the Employee
"For Cause."
(c) The Employee understands that the foregoing restrictions may
limit his ability to earn a livelihood in a business similar to
the Business of the
10
Company and its Affiliates, but he nevertheless believes that he
has received and will receive sufficient consideration and other
benefits as an employee of the Company as provided hereunder, to
justify clearly such restrictions. The Company reserves the
right to provide additional compensation to Employee to the
extent necessary to enforce this restrictive covenant.
12. AMENDMENTS OR ADDITIONS: ACTION BY BOARD. No amendments or additions to
the Agreement shall be binding unless in writing and signed by all parties
hereto. The prior approval by a two-thirds affirmative vote of the full
Board shall be required in order for the Company to authorize any
amendments or additions to this Agreement, to give any consents or waivers
of provisions of the Agreement, or to take any other action under this
Agreement including any Notice of Termination.
13. MISCELLANEOUS.
(a) NOTICES. Any notice required or permitted hereunder shall be given in
writing and shall be personally delivered or mailed by first class
registered or certified mail, postage prepaid, return receipt
requested, or transmitted by facsimile, telegram or telex addressed to
the Company or the Employee at the addresses set forth on the
signature page of this Agreement, or at such other address as such
party may designate by ten days advance written notice to the other
party.
Each notice or communication that shall have been transmitted in the
manner described above, or that shall have been delivered to a
telegraph company, shall be deemed sufficiently given, served, sent or
received for all purposes at such time as it is sent to the addressee
(with return receipt, delivery receipt or (with respect to a telex)
the answer back being deemed" conclusive, but not exclusive, evidence
of such sending) or at such time as delivery is refused by the
addressee upon presentation.
(b) SEVERABILITY. Nothing in this Agreement shall be construed so as to
require the commission of any act contrary to law and wherever this is
a conflict between any provision of this Agreement and any law,
statute, ordinance, order or regulation, the latter shall prevail, but
in such event any provision of this Agreement shall be curtailed and
limited only to the extent necessary to bring it within applicable
legal requirements. If any provision of this Agreement should be
held invalid or unenforceable, the remaining provisions shall be
unaffected by such a holding.
(c) COMPLETE AGREEMENT. This Agreement contains the entire agreement and
understanding between the parties relating to the subject matter
hereof, and supersedes any prior understandings, agreements, or
representations by or between the parties, written or oral, relating
to the subject matter hereof. Upon the Effective Date, the Employment
Agreement dated, December 1, 1995 between Octagon, Inc. and the
Employee shall cease to be of any further force or effect,
11
and the Employee releases the Company, and effective as of the
Effective Date, Octagon, from any claims thereunder.
(d) SUCCESSORS AND ASSIGNS. This Agreement and the rights and obligations
of the parties hereto shall bind and inure to the benefit of any
successor or successors of the Company by way of reorganization,
merger or consolidation and any assignee of all or substantially all
of its business and assets, but except as to any such successor or
assignee of the Company, neither this Agreement nor any rights or
benefits hereunder may; be assigned by the Company or the Employee.
However, in the event of the death of the Employee, all rights to
receive payments hereunder shall become the rights of the Employee's
estate.
(e) SECTION HEADINGS. The Section headings used in this Agreement are
included solely for convenience and shall not affect, or be used in
connection with, the interpretation of this Agreement.
(f) GOVERNING LAWS. This Agreement shall be governed by and construed in
accordance with the laws of the State as such laws are applied to
contracts entered into and to be performed entirely within the State
of Delaware.
(g) INDEMNIFICATION.
(1) ACKNOWLEDGMENT OF PRIOR STATUS. The parties acknowledge that
Employee has previously acted as the Chief Financial Officer of
Power Systems Energy Services, Inc. and as Chairman of the Board
of Directors, Vice President and Chief Financial Officer of
Octagon, Inc. which will become a wholly owned subsidiary of the
Company on the Effective Date.
(2) UNDERTAKING OF COMPANY. In order to induce Employee to execute
this Agreement, Company agrees to maintain Octagon's present
indemnification obligation to Employee for six years following
the Effective Date.
12
IN WITNESS WHEREOF, the parties have executed and delivered the Agreement
on the day and year first above written.
CONVERSION TECHNOLOGIES INTERNATIONAL, INC.
a Delaware corporation
By:_________________________________________________
____________________________________________________
Address:____________________________________________
____________________________________________________
XXXXX X. XXXXXXXXXXX
____________________________________________________
Address: 0000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
13
